In the following pages an attempt has been made to reconstruct
the machinery for the administration of justice in Greece for the
period between Hesiod and Solon. Many of the earlier investigators
in this field, failing to recognize the continuity of institutions, did not
pay sufficient attention to antecedents in earlier practice and sur-
vivals in later practice. Nor did they have the benefit of Aristotle's
Constitution of Athens which has been of great aid in clearing up some
much disputed problems. Hence their discussions of such matters
as the Areopagus, the Ephetae and the Thesmothetae are inadequate.
On the basis of Aristotle's Constitution and various modern investiga-
tions it has seemed possible to bridge this gap. For the age of Homer
and Hesiod I have accepted the conclusions of Professor Bonner in his
two studies "Administration of Justice in the Age of Homer,"
(Classical Philology vi. pp. 12 ff.) and "Administration of Justice in
the Age of Hesiod" ibidd. vii. pp. 17 ff.). The lawgivers and the early
codes I have myself discussed in an earlier paper, "Early Greek
Codes" ibidd. xvii. pp. 187 ff.). These codes, however, with the
exception of the great code of Gortyn, furnish little information about
procedure. Hence the discussion is largely confined to the Athenian
system.
The subject was suggested in a research course in Greek History
under Professor Robert J. Bonner at the University of Chicago and
the dissertation has been written under his direction. I have con-
stantly availed myself of his advice and criticism and I wish here to
express my gratitude for the many helpful suggestions which his
thorough knowledge of Greek and Anglo-American law enabled him
to give.
GERTRUDE SMITH.
The University of Chicago,
April 14, 1924.

ADMINISTRATION OF JUSTICE AS A FUNCTION OF GOVERNMENT
In the early stages of society all wrongs were viewed as offences
against the individual and were punished by the injured person. It
was entirely a matter between man and man and there was no inter-
ference on the part of the government. The earliest, and in the time
of Homer at least, the commonest, means of redressing a grievance,
especially when it resulted from an act of violence, was by self-help
or reprisal. Society placed no restrictions upon this method of dealing
with offenders. Indeed the relatives and friends of the injured man
were expected to aid him in seeking redress for his wrongs and, on the
other hand, the .offender was frequently aided by his kinsmen and
friends. It was the duty of a man to avenge the wrongs of those under
his protection. For example, a father avenged the wrong done a son,
the master that done a slave. By means of self-help an attempt was
often made to recover stolen property. If a thief were caught in the
act he could be killed on the spot. Adultery, seduction, and rape were
punished by the husband or nearest relative of the woman involved
or by the master in the case of a slave. Another method of dealing
with disputes, the beginning of which is seen in the age of Homer, was
by the evidentiary oath. This oath might be taken by one party as
the result of a challenge from the other party to a dispute or a man
might offer to clear himself of an accusation by oath. The taking of
such an oath with the consent of the other party settled the case.
The actual administration of justice, however, began with arbi-
tration.' Where the dispute was not the result of violence the parties
showed a disposition to resort to amicable means of settlement. They
naturally sought as their arbitrator a man of eminence in the state-
the king, or some other prominent man. Thus from the earliest times
arbitrators were practically always chosen from the aristocracy. The
second step in the development of the iLcLttution, is apparent in the
age of Homer in the practice of inducing a reluctant opprn,.rnt b\
means of challenge or wager to settle a di:,pute by arbitration. The
parties, after depositing with the arbitral ,r a -urm of nmne;. or :-ome
articles of value, promised under oath :o abide by hi: deci-i,.n. The

1 Cf. Bonner, "The Administration of Justice in the Age .-.f nmcer," Cl~J'l-i.
Philology vi. p. 22; "The Administration of Justice in t he .e ..i I lei.iI." i.'id. ii p 17
1

TIHE ADMINISTRATION OF JUSTICE

deposits were paid to the winner. Not until the age o.f He.:lilo did the
third stage, compulsory arbitration, develop. In -a:e either rart'
desired it the other party was forced to submit to arl.,itratiin before
representatives of the ruling aristocracy.
But there was as yet no organized and permanent mean: if dealing
with cases in which the state was offended directly or indirectly
through one of its citizens. It is true, however, that the r[oprular
sentiment against wrongdoers which is revealed in co:mmunurity action
and which lies at the base of the conception of criminal lIv, wa- active
in the time of Homer. There are numerous cases in Homer in which
popular opinion was active. Especially if a stranger c:i:,nmitted an
offence against a member of a community the ccmniunitv readily
joined the victim in demanding compensation. If the offender himself
refused to make reparation his tribe was held responsible. As a result
communities became interested in restraining wrong-doing which
might involve them in trouble with their neighbors. Popular opinion
acted through the assembly of all free men collected normally to hear
announcements on public matters.' Telemachus summoned the
assembly of the Ithacans that he might appeal to them to drive out
the suitors. Such an assembly might at any time take action against
any public offender. For instance, Hector says that the Trojans
would long ago have stoned Paris to death if they had not been
timid.2 After the slaying of the suitors Eupeithes persuaded the
assembled Ithacans to go in arms to the palace of Odysseus to avenge
the death of the suitors.3 In the age of Hesiod there are no specific
instances of popular action, but a reference in his p,:cm- t. the
popular sentiment against wrongdoers shows that public opinion va-
active.4 In the early codes the responsibility of the government for

'Odyssey ii. 28. Cf. Euripides, Orestes 870 ff., where the trial ofOre~t i: L re.prcv nt .-
as being held before the Argive assembly.
2 Iliad iii. 56 f.
3 Odyssey xxiv. 421 ff.
SWorks and Days 220. Cf. Bonner, C. P. vii. p. 21. In the four at...-.: m,: rnl..,r ,
ways of dealing with grievances, namely arbitration, the evidentiary .,a! po:p.ular
action and self-help, can be seen the beginnings of many later devel:.p.rT., it I'ritar.
arbitration undoubtedly continued in practice. It would always be t:u- that :...ti.- me n
would prefer compromise to the troubles of litigation. But there is ii... in.l: i,.r.n i h.il
private arbitration was organized by the state until the Athenians pr..'. ,1.:l1 a c-r...i. ..i
men whose services were available for such citizens as desired to sell it ,.;r *J;ii.1 t. :
by arbitration. The evidentiary oath with modifications continued a :r i...r. .4.i rl in
until at least the second century B.c. and it is found in fifth and fourth .:,. nrtur, \r li- nn

FROM HESIOD TO SOLON

the administration of justice, both civil and criminal, is recognized
Judicial functions are assigned to magistrates and other governing
bodies.'
From the earliest period, then, there was a growing feeling that
any action that was opposed to the good order and well-being of the
state should be punished by the state.2 The cases mentioned, with
the exception of the slaying of the suitors, have nothing to do with
homicide. There the whole community was affected because of the
large number of citizens who were slain. The conception of crime and
the origin of criminal law are not to be found in actions for homicide.3
The germs of criminal law are to be found while homicide was still
viewed wholly as the concern of the relatives of the victim. In fact,
although the state came to regulate homicide trials and executed the
punishment, the right to prosecute was always restricted to the
relatives of the victim. It cannot be determined with any degree
of accuracy when the machinery was provided for the prosecution and
punishment of crimes by the state. It has generally been supposed
that Solon was the first to establish criminal law by giving permission
to "every person who so willed to claim redress on behalf of anyone

practice in the oath taken in response to a challenge. A survival of it may be seen in
the oaths taken by the parties preliminary to a trial. In popular action of the age of
Homer may be seen the germ of the Athenian popular courts. It was not until democ-
racy had been established that the assembly of free men became a recognized judicial
body. Self-help is recognized in the early codes. The Gortyn code, for example,
permits self-help in dealing with an adulterer just as in fourth century Athens it was
lawful for a man to kill another caught in adultery with his wife. The laws of Zaleucus
permitted a man from whom a slave had been taken to recover the slave and hold him
until the trial took place. Homicide was also dealt with by means of self-help.
I Cf. Gertrude Smith, "Early Greek Codes," Classical Philology, xvii. p. 195.
2 This feeling is expressed by various later writers. Cf. Plato, Laws 768 A: "For
all are injured when someone injures the state." Lycurgus, con. Leoc. 149: "In aid of
my native land and the temples and the laws I have brought this suit as a citizen
should, rightly and justly." Stobaeus, Anthology iv. 1. 134: "That city fares best and
mot- r.i ill pr. i., r%..: it; democracy in which those who have not been wronged no less
thain hi h, i- r...n.;Jd denounce the malefactor and punish him." Cf... ..a Menandr r.
.'r.Jg. 15I n.;ni i andI Lofberg, Sycophancy in Athens, p. 2, for other c\m[l. I.:,.i tlhel
sairm l:inr
C C cAllun, "Greek Criminal Law," Proceedings of the Classical .1 r.,.iit,,'
(Lond-l'ri, xin, pp. 57 ff. Cf. p. 103: "Criminal law in anctiei Hilli.: %am cxl':1J
quit': indefen-cr-kntl'r o:, homicide, it was not a by-product of :ilCr-iuI.:u- ccreimrial
ir th -urn oif si:r ni. of random accretions. It resulted from ith di Iel.pmin arid
,ip;licar.i--n i:o a r. tinn. al theory of crime."

Nq

4 TIr: AIl.JrF \TION :.F JUSTICE

tor whom wrong \was being done."' But in ihe homicide codeof Draco
there i- a provision that any citizen may either Iill or bring before
the authorities by the process' of ia -,w.-,i a homicide who ha; illegally
returned from banishmenr He is not prosecuted as a murderer, but
a; a polluted person wronrfully living in the city and: expo':,ing every-
I'ody to pollution,. He is a public menace. Hence it is clear that So,:lon
merely torok a principal already made applicable Lby the code of Draco
It: one t rpie : offence anid extended it other offence.-'
There remains then the problem of the motllves which induced. the
'tate to assurne control in homicide caces. ronm the earliest time
-elf-help .as the recognized rnethod of dealing \.ith homicide. There
are numneroui inrintnce. in Hnomer.' Although S.cietv a a hole took
no part in the punishment of the ofien-ler, it expected the relative ofc
the slain man to kill the murdeerr and looked upon their failure to
do so asn the neglect of a solerin duty. On the other hand, honor n\a-.
the 'portion of one who avenged a murdered relative. From this
situation there might result a series of murders lasting through many
generations. The story of the Pelopidae furnishes an admirable
illustration of such a blood feud. The nearest relatives were the
natural leaders in exacting vengeance, but if no relatives survived,
the man's friends might take up the blood feud. If the slain man were
of sufficient importance in the community his death might create a
situation amounting almost to civil war with the faction' of the \ ;ctim
and of the slayer pitted against one another. This i: the nearest
approach in Homer to the intervention of the community in a murder
case.4 Murder was not yet felt to be a menace to society. It wasn
regarded as the affair solely of the relatives of the slain rman and his
partisans. Outside of this group there was no popular feeling against
homicide except the slaying of a near relative or of a guest, both of
which acts were universally condemned by society. It is inpos.ible
to say when the menace of a blood feud came to be recorgnied by the
community. Euripides in his description of the trial of Ore-tl- at

Argos quotes a statute of the Argives, which, in order to avert a
vendetta, forbade killing to avenge the death of a relative.

Else one had aye been liable to death
Still taking the last blood-guilt on his hands.'

If the slayer escaped immediate vengeance his only safety lay in
flight. When once the slayer was in exile he was in no danger even if
he later met a relative of his victim. There is only one case, that of
Aegisthus, in which a murderer suffered death.2 The third method of
settling a homicide case was by the payment of blood money. But
this practice appears to have been rather rare. It would never be
followed in dealing with murders inside the family group. Freedom
from further molestation was, of course, guaranteed to the murderer
who paid a blood price. The motives which induced relatives to
accept blood money cannot be determined. There is no hint that
society urged them to do so in order to avoid a blood feud. Nor is
there any indication that they took account of the circumstances
under which the homicide was committed for there was as yet no
distinction between different kinds of homicide.
The conception of pollution attaching to the homicide and those
who associate with him is not found in Homer. The murderer flees
only to avoid the vengeance of his victim's kinsmen. In fact it cannot
be said with certainty that the conception of pollution is found in
Greek literature before Aeschylus. Farnell finds a hint of purification
after homicide in the Iliad,3 where Hector says that it is "unlawful for
one stained with mud and gore to make prayer unto the cloud-en-
wrapped son of Cronus." But the reference here is merely to the blood
of battle which never was regarded as pollution. Hector is thinking of
bodily uncleanliness. Perhaps a nearer approach to this conception
is found in the refusal of Eumaeus to accept the wager of the disguised
Odysseus involving his death at the hands of Eumaeus in case a
prophecy he made should not be fulfilled.4 The statement that the
first genuine ca-e of purification after homicide mentioned in Greek

literature occurs in the Aethiopis of Arctinus depend, upon a .sate-
ment in Proclus and cannot be accepted *..ith :rrainty.1 It i; quite
possible, however, that the idea came in a' early as the time of
Hesiod because Aeschylus treats it a- a very an._ient cornceptriorn.
In the age of Hesiod, however, there w' a; no ide[arture from the
Homeric practice. Society still expected th- kin.-men of the -lain t,
take vengeance. As yet there was rn:, diitinctlion bietwv.en ditTferent
types of homicide. Even the hu-l:-and ..h.li -Ie'.. an adulterer v.a;
forced to go into exile.3
By the time of Draco several rncv. clement; appear in homicide
law. The state has complete juri-dictilon n in murder trial.; and the
right of self-help is entirely denied the :kinmen ,:.f the ;l.in mian The
only trace of it which remains may be seen in the fact that n,: one
except the relatives of the victim could Inrtitute proceeding.; a,-'ainrt
the slayer. Voluntary exile was still pirnmitted the homicide, but if
he remained and was condemned his prunish-lnti t a-,a; ft.ed by law.
The fragments of the code of Draco and the airing -l la ,.'f SlSol.n'
show that the distinction between dilfc rent kin. of:. homicide ha.i be, n
drawn and that five courts already exi.:ted before I rtaco,' time fo:r the
purpose of dealing with different l.nd& of homicide. Pau-ania- -ays.
that the court of the Delphiniu:n was catabli.lstd for tie trial of
justifiable homicide in the time :f The.-eus The e-Jsirability of
recognizing extenuating circums.ancc arnd of diterentiatin! the
various types of homicide was in all pr.r:ibatility a molti\e for state
intervention. It is apparent that reli;;i.n al.-o ,naa ,,ne of the factor;
which led to the intervention of tlte -tat .A, "o,:n a, the idea va;
conceived that homicide involved rpllution, the layer %nas rcgarJed

as a public menace and society took measures to rid itself of his
presence provided that the family refused to act.'
It is noteworthy that Athenian homicide courts were always
established at some shrine. For example, the Palladium was an
ancient shrine of Athena and the Delphinium was a sanctuary of
Delphinian Apollo. A criminal would naturally seek refuge from his
pursuers at a shrine and as long as he remained in sanctuary his person
was inviolable. It was only natural that the criminal should be tried
where he took refuge. This is well illustrated in the case of Orestes.
He did not go to the shrine of Athena to seek purification, since puri-
ficatory rites had already been performed at the instance of Apollo,
but to escape the vengeance of the pursuing Erinyes.2 "
The state, then, assumed control in homicide cases because it
desired to keep its citizens free from pollution and to prevent blood
feuds. No literature of this transition period describes this develop-
ment, but the case of Orestes as set forth by Euripides belongs to this
period. It is difficult to draw any conclusions from the trial of Orestes
at Argos because of the impossibility of ascertaining just how far
Euripides is projecting back into antiquity the fifth century attitude
toward homicide and how far he is consciously trying to present the
attitude of more ancient times. Euripides was not an antiquarian,
but, being a fifth century Athenian, he would naturally know some-
thing about the development of law and legal ideas in earlier times.
The portrayal of a more ancient attitude toward murder lends an
air of realism to the play. In the same way Aeschylus makes the
trial in the Eumenides more realistic by introducing some archaic
procedure.
Euripides tells the story of Orestes in three plays, the Electra,
lthi Or' icr, andl the Ipl.:; nia] i, Tia lr;.. Of theethhe K rt tivo are of
far the greate-t iriterc-t in a itu,.J off ho'n-ici.:lk, as ther are ornly a few
piAs'ing reference t., tile ub'ject in the i[:f Ilia Vengeance is

the predominating theme of the cElcir..' In fact the play con-i;ls
entirely of the expression of a desire for \engeance on the part of
Orestes and Electra and its consummation at their hands while the
Orestes portrays the results uf their action. The Elc.Ir., then, redectr
the Homeric attitude toward homicide, that i; blood for blood. There
is no thought on the part of either brother or sister of seeking repara-
tion for their father's murder in any other facliion than by killing
his slayers. Their father has been murdered. Oreste is his natural
avenger. On this account an attempt to compass his death vw.a- made
by Aegisthus, but was frustrated by his timely removal to Phocis at
the hands of an old servant At intervals throughout the play
emphasis is laid on the great -truuclv- in Ore-te-' mind between hi-
sense of duty in exacting blood vemngeanc and his horror of matricide.
His duty to his father is paramount until the siglit if hik mother till
him with compassion. In the end the duty to the father triumphs.
In the Orestes the impiety of matricide is much Imore iiilly
emphasized. Murder of others than kinnmen seemn to arou-e no
feeling whatever. Orestes -ho. s nut the slighte-t remoi e fur killing

Aegisthus. In contrast to the insistence on the necessity of avenging a
slain relative are placed Tyndareus' protestations against the follies
of blood feud with its never ending succession of murders. He men-
tions an ancient ordinance of the Argives by which purification by
exile was substituted for blood vengeance.' He insists that Orestes
should have brought his mother to trial instead of killing her. Again,
he complains of the desire for blood which destroys lands and cities.
By this ordinance the Argives recognized that blood feud was a
menace to society and as such must be checked by the state. This as
has been pointed out is one of the important factors which caused the
state to intervene in homicide cases.
The idea of pollution attaching to Orestes as the result of matricide
is very prominent in the Orestes, and in the Eumenides of Aeschylus.
Aeschylus supposes that Orestes left Argos immediately after his deed
and was purified soon afterward at the temple of Apollo in Delphi.
In the Orestes on the other hand the matricide is denied purificatory
rites and communication with the Argives is forbidden in order that
the pollution may not be transmitted to others. This effort to
protect the citizens from pollution is the second reason why the state
intervened in homicide cases.
The state assumed control in civil suits, then, when the govern-
ment provided arbitrators and compelled the parties to a dispute to
submit to arbitration. This development from voluntary arbitration
to a compulsory process of law was complete in the age of Hesiod.
The origin of state jurisdiction in criminal matters is to be found in
the realization on the part of the community that certain offences,
though they might directly affect individuals only, were in fact
detrimental to the interests of the citizen body. Community action
against public offenders began in the age of Homer through the
medium of the assembly. The action of such an assembly was
spasmodic and irregular. Under the more highly organized govern-
ments of the succeeding periods criminal jurisdiction was regularly
exercised by the central political body, a council of elders or a senate
under oligarchy, a general assembly or commissions of it under
democracy. In the time of Homer an assembly could be convened by
any citizen who had a matter of public import to disclose. Anyone
who denounced a criminal before such an assembly was virtually a
prosecutor. The code of Draco specifically recognizes in regard to a

1 512 ff.

THE ADMINISTRATI-it. I 1' j I I--E

single class of offenders, that is unprardoned murderer, wnho had
returned from exile, the right of any ciciien to pros'eclute. Soilon
extended this practice to all offences \ccplt hlo";icie. The rc::nr
that led to state jurisdiction in homicidereere the desirability oI-f
preventing blood feuds, of safeguardingr the ciile-ri from pollution
and, probably, of differentiating the vari:'u;: kLincd of homnicide. But
the right of prosecution was always; re-tricted to relatives of the
victim.

II

CHAPTER [I
TFE JUDICIARY

The oldest form :of political government is monarchical with the
three function of co:mmander-in-chief in war, judge, and chief priest
combined in one person, the I:ing. The Homeric kingship was based
on arict--cracv. At a; very early date this aristocracy as represented
by a council of elders began gradually to weaken the powers of the
king by assigning certain of his functions to one of their own members.
For example, the office of polemarch at Athens was created in this
way during the reign of a king who was incapable of exercising the
chief command in war. Finally by the distribution of the royal
powers among various officials the kingship was put in commission.
In Athens the king had become powerful by reducing the chiefs of the
local communities and imposing his authority over all Attica. After
the unification of Attica had been accomplished in this fashion the
petty local chiefs became members of the council of elders.'
There are indications in the scanty information which has sur-
vived about the legal history of the various Greek states that the
council which developed out of this Homeric council of elders regu-
larly retained both judicial and administrative functions. Whether
the Areopagus in Athens was an outgrowth of such a council of elders
or an entirely new body instituted by Solon is a question which was
discussed at least as early as the time of Aristotle. "As to Solon, he is
thought by some to have been a good legislator, who put an end
to the exclusiveness of the oligarchy, emancipated the people, estab-
li-hed the ancient \Athenian deLnicnrac,-, arnd harm..'lnized the different
elements of the state. According 1 their \ie..;, the council of
Are.':pa'u. 1.a.; ain a .li--archical element, the elected lmagi-tracy,
ari-tiocratcal, andr the court; s :,f law., Idelicratical. The truih
;eeri- to.' be that the Couricil and ili elected ma-zi-trac, exi-ted before
the time of S:olon, :nd were retained bI himi, Lut that he formed, the
court- ..4i Ila .' ut i.f all the citizen-, tliu- creatine the deminocr.acy,
v.hich is the very reason ,,h y he i, ...metirme- blamedJ."- In modern
time- thii problem has occa-ioned much dis.cu-ii aon becau.- of the
apparent contradiction, in .,.me o.f the ancient -ources and the

difficulty of interpreting then. The majority of ihe-e ancient
sources, however, are subsequent to Aritoutle and many of the
speculations of modern scholar. oni the subject -ere rendered ob,-ol.t-e
by the discovery of his CoaIiu.tuion ll /' .i'til ns which ccAntirms his
statement in the Politics if confirmation is needed. But this docu-
ment, although it has satisfactorily dis.posed ..1f nome pha-e. o:.f the
problem, has nevertheless occajionemd 1ew diticulties. In his account
of the constitution before tle time of Draco, Ari totle give; the il-
lowing description of the Areorpagut. "The Council of Art:pagus had
as its constitutionally assigned duty the protection (o the lav. ; but
in point of fact it administered the greater and nmot important part of
the government of the slate and inflicted per-onial punihnment- and
fines summarily upon all who rnihlehated thevncr lvis. This %as thc
natural consequence of the fact that the Archon- v%.ere elected under
qualifications of birth and wealth, an. that the Arepagu. v.as conm-
posed of those who had served as Archcon; for %hich latter reason the
membership of the Areopaguc i- the only office which ha- continued
to be a life-magistracy to the pre-ent day."' Accordinrgi to Aristotle,
then, before the time of Solon or, if the Draconian constitution be
accepted, up to the time of [iraco there exi-ted only one council.
This council was a lineal de-cendant ,.f the Homeric Ib.ul:..' The
dispute as to whether it was calkld i r 'A\pei.-, w6 i , cJ,,Xr in the early
period is of no moment.6 It ik pIosible that at the timn when the
1 For a convenient summary of mi,..,J. rn th.::.r;-.. :,on the i.ubl rpt i L.-ll. S/Ii, n :Zr
ilteren alhenischen Verfassungsgeschi. It.-, [ .' i 6. CI aks',. Tire:..,n. P,.-.*:,., \:.'. y it1
Ancient Greek Blood-Vengeance, pp. r',m' ii.
SAth. Pol. iii. 6. Kenyon's tra-dlatip.,n Tlvi lI,-lar' ..ho .rttak li i their: rthat
the Areopagus existed before Solon's tinm~ rrjhct th. pas.se-'a a- an interp..l:ai
basis of its similarity to the descripti,:.n fA their. Nr.:paig; u- undi r ui..n.
3 Ath. Pol. iv.
SActually as the most represen:atl;.e group ;n the arnit.li.rac, lh. coiun.:il i- corn
parable to the Homeric assembly lhii Jl.lalit .. iti ...li. nct arftTcirg thi ih Ih..l. orm-
munity. It would appear that the arhitral fun'ti .n- .::f thL ani.rtni t..-.ul- :lj th[ .-poi-l
taneous judicial functions of the as~irismly ar.: in a ni.:a-ure iL..n itinrd in thi: arikt-
cratic council at Athens. For exarr.pl., it would d In th natural bdl;.. t-i try ca-cr ...I
homicide, treason and impiety. In -hi. an,.,, rt traiJitii.rn. tle .\reurJiac-j app:-ar- 3- 3
famous homicide court.
Cf. Headlam, Classical Review, '. 2.' "'Th latcr cdun.il
was then the representative of an older r C...uiAil, the ,:.nio ol '.. h.:h ., as .: t n antilqitl .
but which was doubtless descended ir..-n thlhc ll:inierr. Cun.:ll ..If EdJ:rs. It i.. io..:-
ever, not so clear that we must folio. hir, i.Ar;lotli. iin a!lir, t..i '..Id Ci..uncil Lb. the
name which it had in later times. Ihi aJ- .cni nm-it pr:.babl.:, ltere % :.i .nly ..rn~
Council then it would certainly be called r, .-I.' it nia. ha,: Liio o:rnnictcld a ilh the

FROM HESIOD TO SOLON

secondd council was in-tituted the council of elders received the name
by which it wa.~ known in later times It may also be true that the
council thus received it- name in the time of Solon and on thi- account
it- institution vwa. ascribed to him There was, however, a tendency
in ancient times to refer ancient Athenian institution- to Solon and to
this tendency may be due the idea that the Areopagus wa: instituted
by him.' After the abolition of the kingship the membership of the
council must have been increased to include representatives of all the
noble families. Later a further extension of membership was made to
include the nouveaux riches who increased in number and importance
as commerce expanded. It was now recruited from ex-archons chosen
on a basis of wealth and birth. It could not have been so constituted
until the establishment of the annual archonship, but that it was so
composed before Draco is sufficiently attested by Aristotle.2 It was
still a wholly aristocratic body (aptorurivy Kcal rXovTrtsv6).
Such an explanation of the origin of the Areopagus fully recognizes
the historical continuity of institutions and depends upon the author-
ity of Aristotle whose critical knowledge of the history of Athenian
institutions makes him a more reliable source of information than
any of the other ancient writers who discussed the history of the
Areopagus. These writers, however, are not entirely in disagreement
with Aristotle, as some scholars have maintained. The myths attest
the great antiquity of the Areopagus as a homicide court. In a
fragment of Hellanicus there are collected all of the mythical trials
for homicide which were believed to have taken place before the
Areop[agus.A This. account is found al.o on the Parian marble,4 in
Euripides," Demosthenes,' and Pauanias. And the name of the

hill was attributed to the fact that Ares was the first to be tried
there.' A much disputed passage of Plutarch,- contrary to. the
opinion of several scholars, seems to support the theory that the
Areopagus existed before Solon. The fact that Plutarch tay? that the
majority believed the Areopagus to be the work of Solon i, of no: more
importance than Aristotle's statement to the samrre effect Plu-
tarch's further statement that Draco never menti:ons the Arcopa.gua s
in his homicide laws cannot be taken as conclusive proof of the later
establishment of the Areopagus. But the follov.ini: sectionn of the
Plutarch passage contains really important information with regard
to the Areopagus in the so-called amnesty law of SSlon, according to
which those were excluded from the amnesty w l. Ieliore Solon had
been condemned by the Areopagus.4 This seems i.t pro.e c..nclu-
sively the existence of such a court before the time of Solon, nor i;
there any need of Plutarch's attempt to explain the pass.ag.e by sayingg
that there is an ellipsis and that the passage refers to thoe vlho were
condemned in cases which at the time of Solon would come under the
jurisdiction of the Areopagus. Ledls admits that the passage con-
firms the existence of a court on the Areopagus in pre-Solonian times.
But he is unduly sceptical in refusing to admit that this court was also
a council of state. In the early period in Greek states the adminis-
tration of justice was very closely connected with the government
and magistrates and governing bo:iie-. re-tularly e:-.ercited judicial
functions. If, then, there was a court -Itting' on the Areop:agu it i;
more than likely that it was a governing body vas \ell.
More difficult to interpret is th,. pa3sag-e in I'ollux' to the elect
that Draco instituted the ephetae wh:o -at in all t\'-e homicide courts
and that in addition to them Sol.,i in.irtuied the council of the
Areopagus. His statement may be due ti. the fact that he i:und no
mention of the Areopagus in the lavy ofi Drracic which \,ere etarnlt in
his time. Here again Ledl makes a ditirnction l.etv.een the court

of the Areopagu- and the council of the Areopagus, declaring that
Po.llu': is correct in uFppo ing that the court existed in the time of,
and prior to. Draco. but that the institution of the council must be
attributed to Solon. At the .,ame time he admits that Pollux is wrong
in a:rigning the ephetae Ja judges to the court of the Prytaneum.
In \ ie w of Pllu-' blunder in making the Prytaneum an ephetic court
it is better to .ay that he is in error also with regard to the court of
the Areopaczus than to try to explain his reference to it as Ledl does.
For he is forced in the end to admit that the ephetae never sat in the
court of the Areopagus but rather a pre-Solonian council whose
duties were divided by Solon between the council of the Areopagus
and the council of the Four Hundred, the judicial functions being
chiefly assigned to the Areopagus. His argument fails to recognize
that the Areopagus of Solon's time was nothing more than a develop-
ment of this pre-Solonian council to which were assigned all of the
judicial functions which Ledl admits formerly belonged to the pre-
Solonian council as well as some of the executive-administrative
functions. By failing to recognize this continuity he is led to reject the
testimony of Aristotle in favor of the inferior testimony of Pollux
whose statement regarding the ephetic composition of the Areopagus
during the time of Draco is admittedly wrong. There is obviously,
then, no justification for accepting his other statement regarding its
institution by Solon when it is at variance with the evidence both of
the Politics and of the Constitution of Athens.
From the earliest times the Areopagus continued to exercise both
senaturial and judicial function. Acc rilng to Aritotle it virtually
adminiitered the go,\ errnment of the statet. It alo appo-'intedJ the
archons and other magiitrate-.' Its judicial actkvit. i- attested by
the myth- which represent the Areopagus as a h..miciJd court, as well
as by A\ristotle's account which assign- to the Areopag.;ut of the periodJ
before Dracu .,on-'. kind of judicial functions I.ithout d*lehnitely -peci-
f.in- itt character as a homicide court.- But thi- function may .ell
be included under the st.tetimint that it "inllic.ted per-unal punish-
ments and fines -ummiarily upon all ,.ho mi- I.haved themrselves "
Apparently all criminal matters -v, re in the hands of the Areopaguc.
That it dealt i\ith ca.e, of treason before Solon a- v:.ll :. after ir

i .1l,. P -.. % i,. 2.
1 .tn. PMl. Iii 6

THE ADMINISTI .Allit t-." J.i TIC E

proved by the amnesty law.' The Areopagus then is nrtlhing more
than the old aristocratic senate which developed out of the council
of elders of the Homeric age. Tlii two-fold function, judicial and
political, is quite in accord with the system in vocue in other states.
For example, the Council of Elders in Crete. composed of those Ilho
had held the office of x6TApos, acted b-oth as council of state and as a
court.2 At Sparta the Gerousia, the main function of which was
political, was also a court which dealt with criminal cases.3
A discussion of the Areopagus inevitably involves an examination
of the identity and institution of the ephetae. The question of the
origin of this body and its relation to the Areopagus presents even a
greater number of problems because of the meager ancient evidence
on the subject. One ancient source mentions an age qualification
according to which the ephetae were required to be above fifty years
of age.4 Comparing this statement with other known age qualifica-
tions at Athens, some scholars have accepted the fifty year require-
ment in the case of the ephetae. Men over fifty years of age are
known to have been chosen as ambassadors.5 Another example of
the fifty year qualification is found in a law of Solon which gave
precedence in speaking before the assembly to those who had passed
this age.6 The age qualification for the ephetae occurs only in two

SCf. Gertrude Smith, op. cit. Aristotle describes the judicial and senatorial
functions of the Areopagus in the time of Solon as follows. "But he (Solon)
assigned to the Areopagus the duty of superintending the laws, so that it continued, as
before, to be the guardian of the constitution in general. It kept watch over the
citizens in all the most important matters, and corrected offenders, having full power
to inflict either fines or personal punishment. The money received in fines it brought up
into the Acropolis, without assigning the reason for the punishment. It also tried those
who conspired for the overthrow of the state, Solon having enacted a process of im-
peachment to deal with such offenders." (Atk. Pot. viii. 4.)
2 Cf. Gilbert, Griechische Staatsaltertlnmer, ii. p. 221.
a Cf. Gilbert, Constitutional Antiquities, p. 80.
SSuidas and Photius, s. V. &vSpes bnrVp v' tri yryov6ubr Katl apura S~e~LwKvat
T irX~/iLPv 9Xovres ol Kal r&T ovLKs aiKas ikSiKafov.
SPlutarch, Pericles xvii; CIA I. 40.17. P...lnnd, D, I r;L,. ,i.-: Gr..,c.rn
publicis, p. 52, contends that there was once a Ia' f.r.rbddirg mn-r, to be z'nt r.n
embassies who were not at least fifty years of age, but ithat thI I .irl.,' f II ll .-o .i;-
use. Krech, De Crateri 4niiawdprwv aova-ywyi,p.36: n 4~., bt:hIu th tht It. r: nr..r r.a
such a law, but that it was customary to send the olhi.r mrtn -.n .uch ri.;i-;..n- if ther-
had been a law to this effect there would be no ri..,-,n lor itt, in,:lu.-.:.n .:.1 the ag
specification in the inscription.
Aeschines, Tim. xxiii, ris &dope(P s(iobXerat rT.r i: viT -, ritO, rTa crrT, Vo*t .rr.
Cf. Ctesiph. iv; Gilbert, Constitutional Antiquities, p 2'.14.

FROM HESIOD TO SOLON

late le:icographers. It is extremely likely that it is the result of con-
fu-ion v. ith tli number of the ephetae. When once the confusion
iar,:-e compari.-cn .: ith other age qualifications would tend to confirm
it. Furthermore it ik quite improbable that there was an age require-
ment in the caie oi the ephetae when there was none for members of
the ,\reopagu- n .ho tried the most serious homicide cases. It is absurd
to ;uppo:e that there ,was a limit for those who tried less serious cases.
The number of ephetae is established for the time of Draco as fifty-
one.1 There is no known historical reason for such a number and
the attempts to explain it have been many and ingenious, but quite
unconvincing.2 Quite a simple and natural explanation lies ready to
hand. The ephetae were really commissions of the Areopagus. The
odd number at once suggests the analogy of the later popular courts of
201 and 501.3 The tendency of institutions to persist in more or less
modified form even when political conditions are fundamentally
changed points in the same direction. The ephetae are the prototype
of the popular courts. The odd number is intended to prevent a tie.
It is uncertain whether the archon basileus was one of the fifty-one
ephetae or whether he merely acted as the presiding officer. In favor
of the former view it may be argued that since he voted in the Areopa-
gus he voted in the courts of the ephetae also. It cannot be assumed
that he voted in addition to the fifty-one ephetae for that would have
destroyed the odd number. If he voted at all it was as an ephetes.
On the other side it may be argued that as the chairman of the popular
courts did not vote, so the archon basileus did not vote in the ephetic

courts. The sharp distinction n made between the archonr baI ieu.N
and the ephetae in the Draco:i:tin cuod' ha: led mnan.' ti, believe that
he was not an ephetes.
The ephetae cannot be a -ingle group Iof fiftr-ine 'rpreci5l ind'i-
viduals. Owing to possible illnii:, if 'for no otherr rea-on, there could
be no assurance that an\ b.:-dv if t'ry-on:r men w:.uld always beI
available for service when req-uired. The only means of assuring the
attendance of a full con:.pl. I i.i v.o:uld be t, draw them fru.m a lar:.-:c
body as the need arose, just as the popular cour ts v.CeI drawn from the
6000 annual jurymen. Obviously this group was the Areopagus.
Some confirmation of this is to be found in a statement of Pollux,
hitherto regarded as an error, to the effect that before Solon the ephe-
tae sat in the Areopagus. i6iKa ov U 'ros O 4' aCL'ar7T ~tKopbtvoLS i
7os TrTvre 6tKaarrT7PLots.1 This expression is perfectly natural if the
ephetae were drawn from the membership of the Areopagus. As to
the method of selection there can be little doubt that it was by lot
which was not unknown in oligarchic constitutions.2
The etymologies of iZr7?s commonly given do not support this
interpretation.3 A further derivation-from EieurOa--may be

1 Pollux viii. 125. The five homicide courts were the Areopagus, the Palladium,
the Delphinium, in Phreatto, and the Prytancum. Cf. supra, p. 14.
2 The evidence of Aristotle makes this suggestion plausible. In speaking of the
three homicide courts, the Palladium, the Delphinium, and in Phreatto he says c;
Xax6vprs raGra ticrae (Atl. Pol. Ivii. 4). iuTrac appears to be the only possible restora-
tion for Harpocration, who discusses the ephetae, derives his information from the
Constitution of Athens. Irrl HaXXabiy' A,1porOivts iv rT Kara 'AptTroKp&Tovu. 6utaaripts6v
CrTLV OUTO KOaXoibYEOV, WT Kal 'APLtTOTriXTs iv 'Ae7valwv TroXtrela, iv c( 8aKa1oUaw
&aovalov ii6ov Kai flouXvtbrew ol iirat. There is no other extant passage on which
Harpocration's statement could be based.
I The word occurs in the sense of chief in Aeschylus' Pcrsac 79, but this is of no
assistance here. Pollux regarded the ephetae as a court of appeal, thus deriving the
name from i4Ctasot. This description of the c. urt l,: ;I.U pr.:.r.un ;m' r...-. I, L.-i bIt
linguistically and on the ground of the facts in lt .:.- I,.; .:, ..- ..- 1.,: p 15., n
53). He himself derives the word from iii-cO, .. i.n ri-t l i tI : r,,r jr .J .*J Gri.- it
as "Anzeiger des Rechts," equivalent apparently, i. ith,: hltr i., ,,r S,.:..a
much earlier had claimed this same etymology !,.r rli. 1 ..r-.. bu t .lian d a'. Ithlr
determination of how the accused was to be dlt i Iuh i l.n .u.- i a 'I :. I .Ir..1 [.*-
et ephetis, pp. 7 f.) But Philippi has shown thit -ucdl nairi t ri ai.lI rl quallv -.11
to any college of judges (Der Areopag und di iE/. ... I:, l l 21 : I .ir:,.!li Ai .:-pt,
Lange's explanation (de ephetarrum Alleniensih,.: ,.':-.- ..p I I ff11 l -t the i.:,rd1 i; -,
compound of irl and Frais, i.e. representatives r.f th,- i:iltn in a i nilrne in tl-. r.e.r'diri.'n
of relationship to one another. According to th-. ..' hIo . r. it:,' .i.uld c.'n: trut.
an administrative council as well as a homicide I:cort,r hIch r-., r,...t the i i- TI r.

FROM HESIOD TO SOLON

suggested. If the word be understood in the passive sense it can
mean "men sent out as a commission" from a larger body. There
may be some difficulty in understanding the word passively, since
nouns in -Tns denoting agent are regularly active in force. It is not
impossible, however, that the noun should have come from the
verbal in -ros and that under the influence of names of other officials
ending in -riTs it was changed by analogy from ecros to & irps. This
explanation of the word is supported by the word ad4rys which is
used passively of a freed slave.'
It may well be that the ephetae were instituted when the distinc-
tion between different classes of homicide began to be recognized.
The development possibly was as follows. Before different classes of
homicide were distinguished the Areopagus tried all cases. All types
were treated in the same way. But homicides who had slain unin-
tentionally or felt that their acts were justifiable began to resort to
temples for refuge or purification and claimed protection on these
grounds, but as litigation and political activity increased it was not
convenient to assemble the whole Areopagus so frequently. So, while
the whole body continued to sit on the most important cases, they
sought relief by drafting sections from their own number to deal with
the less important cases.2 It would be natural to try the suppliants
on the spot. Hence the committee would try the case where the
suppliant had taken refuge. This is obviously what Photius means
when he describes the ephetae as ivpes o'rtLves 7repu6vTre i&SKcaov.3
Just as in later times each Heliastic court represented the whole body
i:f dicasts so the ephetae represented the Areopagus. A passage from
Photius describing the ephetae as &iptora a EOPtwivcKat L t6Xwv oXovrfT
supports this view. As members of the Areopagus they would be

is no evidence that they had any functions aside from their activity as a murder court.
C'eSanctis' view that they had to do with granting permission for religious purification
is not deserving of serious consideration (op. cit. pp. 169 f.). Ledl, op. cit. pp. 335 f.,
drives the word from Olevat in the sense that the ephetae permit an objection of the
defendant to the plaintiff's conception of the act, i.e. they determine whether he shall
be tried on a charge of murder or involuntary or justifiable homicide.
Athenaeus 271 F.
: I here could be different sections, but not concurrent sessions, since the presence
of itab rchon basileus was required at each session of each of the courts.
1i :. )Tmrar. The passage is thus quite intelligible and there is no need to emend
sp.,. rT, to r' 6Prrs, in accordance with Zonaras' account of the number. Cf. supra, p.

THE ADMINISTRATION *OFr iL'1 I

ex-archons and as such would have passed a succei-sful 'o:,:ima-ia and
audit before their admission. Hence the dJe-,:ripti..nr may tle accepted
as it stands rather than as a perversion i:. P:olilus'.' apiTri: r'.r, as it is
usually understood.'
This passage of Pollux alone containr a reference t:. a cla-.s quali-
fication for the ephetae. Possibly he ..:rkved hi.;. -tatiement that they
were chosen &parpiTvSrv from the law of Dracr:. But if this is the ca.e
he has misinterpreted the law, robrous 5R ol TrePvrY ovra ta'i els apwrt-iv7
alpELdOww. The word &pwrt-vlv refers not to the class from which the
ephetae were chosen, but to that from which they were to choose a
certain number of phratry members. The fact that Pollux is the
sole authority who mentions this qualification lends color to the
theory that he merely misunderstood Draco's law. But if this
explanation be thought unsatisfactory and Pollux' statement be
accepted at its face value it can only be understood to mean that the
institution came into existence before the nouveaux riches were
included in the aristocracy. But the nouveaux riches before the time
of Draco were eligible for magistracies. Hence it is unreasonable that
they should submit to be excluded from the Areopagus. The explana-
tion must be that the old qualification continued to be used after the
nouveaux riches were admitted to office but was understood to include
all members of the aristocracy whether by wealth or by birth. It is
not probable that there would be a more stringent qualification for the
ephetae than for members of the Areopagus who had the most
important political and judicial duties in the state. The ephetae who
were instituted for less important work can hardly have been a more
exclusive body. In fact, the use of ApLarivbi6? may indicate a qualifi-
cation for the ephetae exactly like that of the Areopagus.
There are no means of determining whether a fresh group of
ephetae was drawn for each case or whether they merely filled the gaps
due to death, illness or other causes, leaving the prerlonnrel the same
as far as possible. The analogy of the popular courts d_,ces nrit help.
There are some indications that in the fifth century the same group
sat day after day under the same magistrate.'

According to Plutarch the Alcmaeonidae who were involved in the
curse of Cylon were tried by a court of 300 selected from the aristoc-
racy.' This has led to the belief that there was in Athens a second
council, composed of 300 members.2 But there is no evidence what-
ever for any further activity on the part of such a body and it is
much more plausible to suppose that a special court was provided for
this very important case.' Any theory with regard to the composition
of the court must necessarily be entirely conjectural, but it may be
suggested that for important trials the number of ephetae could easily
be increased. The members of this tribunal being Areopagites con-
stituted a representative commission of the sovereign body of the
state. In the same way under the system of popular courts in later
times enlarged juries, e.g. 1001, occasionally tried cases.4
With the council of the Areopagus were associated the officials
who had inherited the royal powers. Aristotle describes the gradual
transition from kingship to aristocracy. "Now the ancient constitu-
tion as it existed before the time of Draco, was organized as follows.
The magistrates were elected according to qualifications of birth and
wealth. At first they governed for life, but subsequently for terms
of ten years. The first magistrates, both in date and in importance,
v. ere the King, the Polemarch and the Archon. The earliest of these
i:,lices was that of the King, which existed from ancestral antiquity.
To this was added, secondly, the office of Polemarch, on account of
:,ome of the kings proving feeble in war; for which reason Ion was
invited to accept the post on an occasion of pressing need. The last
,of the three offices was that of the Archon, which most authorities
state to have come into existence in the time of Medon. Others assign
it to the time of Acastus, and adduce as proof the fact that the nine
Archons swear to execute their oath 'as in the days of Acastus,' which
reems to suggest that it was in his reign that the descendants of

Codrus retired from the kingship in return for the prerogatives con-
ferred upon the Archon. Whichever way it be, the difference in date
is small; but that it was the last of these magistracies to be created is
shown by the fact that the Archon has no part in the ancestral
sacrifices, as the King and Polemarch have, but only in those of later
origin. So it is only at a comparatively late date that the office of
Archon has become of great importance, by successive accretions of
power. The Thesmothetae were appointed many years afterward,
when these offices had already become annual; and the object of their
creation was that they might publicly record all legal decisions, and
act as guardians of them with a view to executing judgment upon
transgressors of the law. Accordingly their office, alone of those
which have been mentioned, was never of more than annual duration.
So far, then, do these magistracies precede all others in point of date.
.They had power to decide cases finally on their own authority,
not, as now, merely to hold a preliminary hearing."'
Along with the political functions of the king the three archons
inherited his judicial functions which tended to overshadow their
other duties.2 The exercise of judicial functions by the magistrates
was characteristic of Greek legal systems.3 The archons did not sit
as a body, but each archon adjudicated the cases assigned to him.
They had final jurisdiction, for not until the reforms of Solon was
provision made for an appeal from the decision of the magistrates.4
The archon judged mainly cases in which the family was involved,
that is cases of injured parents, orphans, or heiresses. The juris-
diction of the archon was concerned with civil suits, especially
those dealing with property. No doubt a survival from a period when
his jurisdiction was much wider is to be found in his proclamation on

entering office to the effect that "whatever anyone possessed before he
entered into office, that he shall possess and hold until the end of his
term."' The polemarch was for foreigners what the archon was for
citizens, and the archon basileus conducted cases connected with
religion. In particular he was the presiding officer in homicide
courts. There has been some dispute as to whether the king archon
presided alone or was joined by certain other officials. The code of
Draco represents "the kings" as presiding at the preliminary investi-
gation in a homicide case and as deciding before which court the
trial would be held, L&KbSEL h6 Tros flaoXas airL v c6vov. The amnesty
law of Solon mentions "kings" as presiding at all five homicide
courts.2 Four theories have been advanced as to the identity of
these kings: all of the nine archons or at least the first three;3 the
phylobasileis or kings of the pre-Cleisthenean tribes;4 the archon
basileus and the phylobasileis combined;5 the archon basileus alone.6
Against the first of these theories it may be objected that such a
designation of the archons in an official document after the institu-
tion of the annual archonship is unthinkable. If the phrase were so
understood when the law was copied down for practical use in 409/8
it would surely have been changed for at that time the king archon
presided in murder courts and would naturally be alone thought of.
Another objection to the theory is that a court of the nine archons
under the presidency of the king archon is inconceivable. In such a
case the archon eponymous would naturally have held the presidency.
The second of the four theories is negligible since the king archon
must have been included whether he presided alone or in conjunction
with the phylobasileis. The combination of the king archon and the
phylobasileis is supported by the plural number alone. But the
plural number may be explained otherwise. In one of the later
speeches of Antiphon whose career ended in 411, it is definitely

stated that the king conducted the preliminary investigation in
homicide cases.' There is no reference to phylobasileis or any other
kings. The procedure here referred to is that of the law of Draco.
These laws were revised and inscribed in 409/8. It is impossible
that any change should have been made in the presidency of the
homicide courts in this revision. The "kings" in the law must, as
Kdhler suggests, be the king archons in succession.2
Aristotle is the sole important authority for the origin and institu-
tion of the thesmothetae. The purpose of their creation was 7rwcs
ava'yp46avtres T& Orptua kvXarTTrsc Trp6s 7v rc1 v t p raplsr7obirvwv Kplatv.3
This is not a very explicit statement; Aristotle is probably etymo-
logizing. Modern scholars have argued that their duty was either to
reduce to writing the customary law in an authoritative form or to
record the legal principles underlying the decisions either of them-
selves or of other judicial officers.4 Either view presents difficulties.
It is possible, however, that they were both judicial officers and in a
sense also legislators. It is quite natural that as the city grew and
judicial business increased the need should be felt for additional
officials to take care of the business which did not fall under the
jurisdiction of any of the three archons.6 To relieve the archons

Svi. 42. Jebb, Attic Orators I, p. 62, n. 1, places this speech several years after
the de caede Hcrodis which was probably spoken between 421 and 416 B.c.
2 The plural faatXri in Plato, Menexenus 238D, has regularly been understood to
refer to the king archons. Cf. Shorey, Classical Philology v. p. 361, who advances the
theory that the word here is to be understood in the Platonic sense.
3 A th. Pol. iii. 4. A similar statement appears in the Lexica Segucriana (Bekker,
Anecdota i. p. 264) and in Harpocration, s. v. OewgoOreat.
SCf. Lipsius, op. cil. p. 12, n. 44; Busolt, op. cil. ii. p. 177; Ziehen, Rhein. Mus. liv,
pp. 335 ff.; Wilamowitz, op. cit. i. p. 245; Sandys, op. cil. p. 8; Botsford, Athenian Con-
stitution, p. 129; Bury, op. cit. p. 176; Ledl, op. cit. p. 269.
'The various theories which have been advanced regarding tlti numrrFtr rJan
origin of the thesmothetae have no bearing on this discussion. It hai L,.en :u cltt
that they originated as ,rtipe6po or assistants to the other magitrrac,- jar .. ere nma.]
independent judicial officers to take over part of the judicial bulrnesc of tlsh:e r:.,giis
trates. Cf.Gilbert,Constitutional Antiquities, p. 113; Lecoutbre, L.'. Ir.-it.,:! .tl .', p
114. This theory is inconsistent with their later activity as a nollqg,: ur, Of. ci/
p. 176, suggests that "the number of'six was determined by tr fi.lt U.at thi .:,rI.i i
nated in a compromise between the orders, three being Eupairi.i, r. Cc.'.rgi, ar..l
one a Demiurgos." DeSanctis, op. cit. p. 137, contends that the number .i._ nor.
originally six, but that new thesmothetae were added as the n.mbcr and 1mi[.)rt.ainc:
of the cases which came before them increased.

FROM IlTlIJD TO SOLON

the college' of the thesmothetae was created who presumably took
over cases which were not connected with the official duties of the
three archons -' With their institution there came into existence
alongside of tht nmagistrates wi th judicial functions a body of special
judicial officers. A definite attempt is thus made to systematize more
highly the administration of justice. This practice is characteristic
of other Greek judicial systems. In the Gortyn code, for instance,
the K6a or or chief magistrates had special judicial functions. For
example, the K60`Uos 4ivtos in his character as judge, seems to be
parallel to the polemarch at Athens. Aside from the K6o-LO there were
special judicial officers, referred to always as &Kacrai. They cor-
respond in a general way, in so far as they were specially appointed for
judicial purposes, to the thesmothetae. This is a normal development
which is bound to take place with the expansion of the state and the
consequent growth of litigation.
In applying customary law to specific cases and recording their
decisions they are in a sense legislators, because, as has been well
said, "in the absence of a written code, those who declare and interpret
the la s ma I:r properrly -aidt to: make them '" It may be suggested
that the practice ,of rec:rdinig judicial decisions was new at the
time of their intitutiu:i n and that their name is due to the novelty
of the custIo now followed b\ all magistratie. Aristotle employs the
n ord viopa The more common form Otapoi, analogous to the Oipwres
of Ho.mer, includes both general law.: and particular sentences.4
The two ideas are not vet di,:r;rr:nadJ. General law is conceived
only in its applicant n to -...ne pn.ti'lar ca.-e. "The thesmothetae,
therefore, iceiti\~ld :'e;r name not merely from the fact that they

made law by administering it, but from being the first to lay it down
in written decisions."'
The advantage of this explanation is that it accounts for the
later two-fold function of the thesmothetae in the fifth and fourth
centuries. Aside from their strictly judicial business which included
a large variety of cases they had general supervision of the laws and
directed their annual revision.2 These duties were a natural out-
growth of their early activities as makers and recorders of judicial
decisions. In the fifth and fourth centuries the thesmothetae were
mainly concerned with criminal cases. Civil suits ordinarily came
before the Forty and the eicaywyeis. In the early period cases that
intimately concerned the whole public were dealt with by the body
most representative of public opinion. Thus in Homer the assembly
was the normal medium for the expression of such public will as there
was.3 Under the aristocracy in Athens in the pre-Solonian period the
senate was the most suitable body for taking public action. The
Areopagus appears only as a homicide court in the fifth and fourth
centuries, but in an earlier period it dealt with matters which con-
cerned the entire community,e.g. treason and impiety.4 Now the
jurisdiction of the thesmothetae must have fallen between that of
the archons and that of the Areopagus. This would include both
criminal and civil suits. Aristotle's words T)v rcvv &lYkwIp-ro0vrov Kpi',v
may indicate, as DeSanctis believes, that the majority of the cases
which originally came before them were civil suits.' It may be a
matter of accident thatin'divesting,-themselves of a part of their
duties as litigation increased ihey tefided to reserve criminal cases
for themselves anTd'd to trn over civil suits Tfrst'to the b&Kaaral Kar&
6iovus and later.to other officials, namely the Forty and th.z Eiaaywyes.
On the.basis of a passage'i Pljattiicbre'ferring to thte .imrnesty law
of Solon a'number of scholars wrongly bel-idve that in pre-Solonian
times there existed a court at the Prytaneum, distinct from the
homicide court of the same name, which tried those who were accused

of attempting to establish a tyranny.1 This law which Plutarch
reports in his own words is reproduced in the decree of Patrocleides
of the year 405 which reenacted the ancient law of Solon. The
amnesty was extended to all arnpot, \rXiv 6b6ra v or-Xats y-yparrac
rciv u &i3v s AEtivAvrwv, j i 'Apdiov 7r&you ) r T7V CpiTv fl K 7rpvTaveiov
SLKA-07a iwr6 rOv faot0'wv j btri 46va ris rrT uP'yi ji O varos KearT'yvwOri
t aeiay reDt vpavvots.2 The five homicide courts are here listed.
The words & rpvravEiou refer to one of these. At no time in Athenian
history could so serious a crime as treason have been dealt with either
by the king archon and the phylobasileis,3 or by the nine archons
under the chairmanship of the archon basileus, an official whose
duties were religious in character.4
In brief, the officers and bodies which composed the Athenian
judiciary in the early period were the following. The three archons
exerci ed judicial functions in addition to their political activities.
Beside these there existed a group of special judicial officials called
thermothetae. The Areopagus, composed of ex-archons after the
institution of the annual archonship, had a two-fold character, for it
nwa both an administrative and a judicial body. Commissions of the
Areopagus, the members of which were known as ephetae, were
appointed to try less important homicide cases in the Palladium, the
Delphinium and in Phreatto. It is possible that several sections
nmght meet together to try special cases which were not important
enough to come before the Areopagus assembled as a whole. Lastly,
the phylobasileis, sitting in the Prytaneum under the presidency of
the archon basileus, tried animals and inanimate objects which had
caused the death of a human being.5
Available information with regard to the Athenian judiciary,

Solon xix.
Andocides i. 78. For the text here given and a detailed discussion of the whole
laI cf. Gertrude Smith, CP. xvi. pp. 345 ff.
Meyer, Geschichte des A tertums, ii. 233A; Keil, Die Solonische Verfassung,
pp 108 ff.
SLange, op. cit. p. 223; Philippi, op. cit. pp. 217 ff.; Lipsius, op. cit. pp. 24, 61 ff.
SThe discussion regarding the identity of the prytaneis mentioned in the con-
siltution of Draco (Aristotle, Ath. Pol. iv. 2) is not of great importance for the purpose
..I thbs treatise. They may have been identical with the nine archons (cf. Sandys, ad
1-c i or they may have been the presidents of the new council. They do not, how-
,.. .r, affect the discussion of the judiciary of the period. Gilbert, op. cit. p. 125, suggests
thi- they were the standing committee of the new council and that to them were
trar~ferred some of the judicial powers which the Areopagus had formerly exercised.

THE ADMINISTRA I I,'N OF JU SII: I

despite its many difficult problems, is far fuller than that with regard
to any other. The surviving fragment- of thi. Greek codes, ho",.ever,
indicate that there were regularly two groupI of judicial oi Lciah,--
magistrates with judicial functions anrd especially appo:cintedl judicial
officials. At Gortyn in Crete, for instance, the judge were divided
into two groups, the first of which consisted of magistrates with
judicial functions called KboapoL, ten in number.' Their exact func-
tion is uncertain, nor is it even clear that all of the K6upot acted as
judges. It is likely that it was an annual office, since the name of
one of them served to date the year. The most frequently mentioned
is the K6apos kivtos who apparently corresponded to the polemarch at
Athens, the representative of all non-citizens.3 It is the recorder of
this Kbtpos who pays the sum due the adopted child after his repudia-
tion.4 As the protector of the rights of the freedman he appears in a
popular decree.5 The particular K6-bos is not specified before whom
the heirs-at-law must take their case if some one marries an heiress
contrary to law.6 Perhaps, as was the case with the eponymous
archon at Athens, so at Gortyn the eponymous K6o os had charge of
matters dealing with the family; but the analogy cannot be pressed.
The second group of judges-buKaacTai-were appointed especially as
judicial officers. They are given specific names in only two instances,
TrL TaV TaLpt7LV tv KaaTrTiL and is Ka r7v &veKipov tLKa63r',7 but the
functions of these two judges are not clear. The law specified the
judge before whom each particular case was to be brought, poMiv
6T Ki' bri XE~C, FEK.O(T'O yparras.8 There were evidently then
different courts for the different kinds of suits just as at Athens, with
the distinction that in Gortyn the court consisted of one judge before
whom the trial took place rather than a jury.
Other Greek legal systems also assigned judicial functions to the
regular magistrates. In Sparta the kings retained some judicial func-

tions, in general all cases which involved family rights. The ephors
decided suits which arose out of contracts unless the dispute was
settled by arbitration. They also had judicial functions in connection
with their duties as superintendents of police.' Such also was the
case among the Locrians under the laws of Zaleucus.2 Of the two
groups the magistrates acting as judicial officers are of course the
earlier, a survival from the time when religious, political and judicial
functions were all combined in the person of a king. Special judicial
officers were naturally created as the state expanded. Some of the
early codes apparently provided for popular courts. That the people
of Catana in Sicily had popular courts under the laws of Charondas is
shown by the law imposing a fine for failure to perform jury service,3
but there is no information about their organization or jurisdiction.
There are references to &Kaao-Ta which probably refer to the jurors of
these popular courts.4 In one case at Locris the proceedings were
before the assembly of 1000.5 But this was an action for the altera-
tion of an existing law and the people, if they constituted the legisla-
tive body, would naturally hear the case. It does not imply that they
were also a regular judicial body.
There are reference- to other judicial officials at Gortyn. Each
judge and each ,6auo; 3a well had his remembrancer or recorder
(pva.pwi.'A 1The duties of thece officials consisted in recording the
judgment of the otffuial under whom they served. In one instance,
in the case of the death of a man who was still in debt through defeat
in a lawsuit, the testimony of the judge and his recorder regarding the
outc-nme of that suit aided thi: creditor in recovering the amount of
the debt from heirs of the deceased.' This case has given rise to the
view that there were nr: written records, but that the judge and his
recorder served as oral witne-:es, of what had taken place. By paying
the money due the repudiated child the recorder of the KOOTOS kivLOS
became a witne-.s both to the fact of the repudiation and to the

The arbitrator is designated by the formula tr K' kirtTp.irwvt. Some-
times he was chosen by one of the parties and accepted by the other
later, or the two might choose him by common agreement. He was
allowed three days in which to render his decision. If he had not
reached the decision at the expiration of that time he was punished
by a fine equal to the amount in dispute. Apparently if only one of
the parties had demanded an arbitrator he received the entire benefit
of the fine. If both made the demand both shared in the fine.
The judicial machinery at Gortyn was then very simple. There
were 6apoo, magistrates with judicial functions, &rao-Rral appointed

SGortyn Code, xi. 14 ff.
Sol rtrac. Cf. Ziebarth, op. cil. p. 33. i.
Dareste, Haussoul.ier, Reinach, Recucil des inscriptions juridiques grecques, p.
400; cf. p.430. In a fragment very difficult to interpret Halbherr claimed to have found
a reference to arbitrators (American Journal of Archaeology 1897, pp. 213-14). The
case deals with sequestration of property in consequence of defeat in a lawsuit. Seques-
tration is made of the property of the wrong man who brings action to recover the
property: KaXv 6' Ivrt uatrbipov v rpbrp Trov rT I [iveKvrupiKla P Ta pear6tbpeov. aL 3i Ka
pi eei KaaXlovrt ItL lyparrat, abrbs perpWo re Kal 7rporoviTW ,rporiraprov &vIr patrbpov 6vUv
irapuer ivs Ayop&v. (Published by Ziebarth, op.cit.p.36). Halbherr advanrec the theory
(suggested to him by Comparetti) that the party who does the summoin,rn; I- an arttirr
or 6SaTrni7s. It may just as well refer to the party from whom the selzur-r haj b,.n
wrongfu ly made, three men only being involved instead of four, as Ilalbhcrr a-iirt,.
The passage furnishes very slight evidence on which to base any thr.:,ry as therr
are so many lacunae which cannot be filled satisfactorily.

FROM HESIOD TO SOLON 31

for purely judicial purposes, pvipoves, one for each magistrate or
judge, arbitrators chosen by the parties themselves, and rirca who
executed the penalty awarded by the judge. The absence of popular
juries simplified the system greatly, but seemingly placed large
powers in the hands of one man in cases where the course which the
judge should take was not specified.by law.

CHAPTER III

PFI.'':CEDnRPE IN (RIMINIL .\AND CIVIL SUITS

The modern division of .u;t into civil anrd crinin:l na; unknc own
in Attic lav.. Bishop define a crirni ai "any ron g which the govern-
ment deems injurious t the public at large, and punishes through a
judicial proceeding in it onn name."' Autin insists that the scale
distinction lies in the procedure.2 The plaintiff is always the govern-
ment-the sovereign in Great Britain, the people in the United States.
In both cases the action is initiated by a judicial officer specially
appointed or elected for the purpose. Anyone who has knowledge of
an alleged crime may lay the information, but he is not responsible
for the prosecution except in so far as he may be required to give
evidence.
In Athens suits were divided into public (-ypaai) and private
(6i&at) suits. The distinction between the two is chiefly in the
procedure. A private action, whether ex delicto or ex contract, could
be instituted and carried on only by the person interested or his repre-
sentatives. A public action could be prosecuted by any citizen.
The Athenian government did not take action in its own name or
appoint officials to act as public prosecutors. There is no indication
that any different practice prevailed in other Greek judicial systems.
A peculiar feature of the Athenian system is that homicide cases were
always regarded as private suits. Only a relative of the victim could
prosecute a murderer.
The few notices that have been preserved of the codes of the
earlier lawgivers furnish rather scanty information about the conduct
of a trial.3 The Gortyn code,4 however, affords many interesting

detail: which make it possible to form a fairly complete picture of a
trija.' All freemen were competent to bring suit as a general rule."
T-ere vere certain conditions, however, which might prevent a free-
man from instituting an action in court. A man holding the office
of icooros could neither sue nor be sued during his term of office.3
If for any reason a freeman was in the possession of another, he was
viewed for the time being as a slave and could not bring suit. The
possessor had to act in his behalf. For example, if a man had mort-
gaged his person, the mortgagee had to bring suit if the man was
injured.4 If the mortgagee failed to do so then the matter dropped
until the man had redeemed himself, when he was again competent
to bring his own suit. This must have been the case also with the
ransomed man who remained in the possession of his ransomer until
he repaid the ransom.5 Freedmen apparently had equal rights with
freemen in the matter of starting an action in court.6 A slave was not
a competent party to a suit. There are many examples of the action

abounded in archaic survivals even in the age of Ephorus and Aristotle. The code
seems to be a restatement, with additions and amendments, of articles and chapters
of a prior code. So, in point of development, there is justification for comparing it with
the legal system of Athens in the seventh and sixth centuries. It is noteworthy that
there is no mention of homicide. It may be suggested that another portion of the
code not now extant, dealt with this subject. Or, possibly, self-help in homicide was
still practiced and the state had not yet assumed control.
SAccording to the Gortyn code certain matters which now require judicial action
were settled out of court. A proclamation before the assembly seems to have served
the same purpose in certain cases as court action at the present time. An example is
the procedure in adoption. The adoptive father proclaimed the adoption in the agora
before an assembly of citizens from a certain stone set up as a speaker's platform.
This :t I 'I- .ll,'v.i-.b: by 1 ;,:r;i6ce ild i lbiltion the formal means of introducing the
ne.. in into the tribe i 33 I i. CI the ci:rnt i: to Zeus Phratrios at Athens. Appar-
ently nro J-ction ,was Jtak.tn l. the ij:,..ni,],. The n.mre publicity of the act served to
cor,trm it In thle s.ime mrn.n:r if the ad.J.ptr.L iFri-er wished to renounce the adopted
child public prn.claniarion ',i.; the rquir.:,i proc:. lure To complete the renunciation,
h,,owr..er, a piyment of ten 'tatern to the c:iltd *,i required. This was done through
the courts.
'A min obtainjri full rights ..f .:itizern.hip ..D attaining the age of eighteen,
although before that tim.- he michi mirry i(ii 35' ind be a witness (ix. 45). Cf.
Kohler and Ziebnh, op cit. pp. 5o ii
1' 50 ft.
'Zjebharh, op. cit p. 30. vi
\i. 46 ti.
Ziebirth, p 33 1 arafC-,If3tPd'i A.ar&I. ,c.,ir rTa FiWFat Kal rat gowlat.
Cf. Direste, op cit p 421

THE ADMINIST F \ i V' i:r JIu sIC I

of a master in behalf of his slave. If a mortgaced lave was inj'ired the
mortgagor and the mortgagee could brine suit either jointly or
severally.' In like manner, if the -la'e as. re pr:en-ible fo.r .in
injury, suit was brought against the mortcagee, if it v.a. co'n'nittld
according to his orders; but if it v.as committed on the ilave's o-wn
initiative the original owner was responsible. Likewise if a newly
purchased slave had committed a wrong his new owner was respon-
sible unless he repudiated the purchase within a given time.2 By
implication if he did repudiate the purchase the former master became
responsible. Again, if a slave was caught in adultery it was to his
master that a demand was made for his ransom.3 A slave girl vio-
lated by her own master might herself take an evidentiary oath that
she had been so violated.4 This case is easily explained by the
fact that the master who would normally bring suit for her was him-
self the offender so that she was left without a legal representative.
In general a male relative brought suit for a woman and defended
her in court. For instance, if a bridegroom elect refused to marry an
heiress, her relatives brought the matter into court, not the girl
herself.6 If someone married the heiress contrary to law, her relatives
brought suit.6 In this case, however, the marriage might take place
with the consent of the woman, so that the relatives were really the
injured persons. If rape was committed on a free woman her rela-
tives brought action.7 In view of all these cases, then, it seems
certain that a woman was always represented in court by a male
relative or guardian. The unmarried woman was under the care of
a blood relation or a guardian. The representative of a married
woman was her husband, of a divorced woman her relatives. Her
status reverted to that of the unmarried woman. An exception
similar to the case of the slave girl occurs when a divorced woman
was ordered to take an evidentiary oath.'

1 Ziebarth, p. 34, iii.
Svii. 10.
'ii. 32.
Sii. 15 ff. Cf. infra, p. 56.
Svii. 43 ff. Likewise if there was no groom elect the relatives offered the
heiress to the tribe.
Sviii. 55 ff.
Sii. 16 ff. Cf. Buck, op. cit. and Ziebarth, op. cit. on this passage.
Cf. ii. 45 ff.; iii. 1 ff.; iii. 46 ff. The evidentiary oath was really a form of trial
and so differs from the oath in Athenian practice, which was not required by law. but
was taken as the result of a challenge.

FROM HESIOD TO SOLON

The scanty remains of the codes of the other lawgivers afford no
information about the parties to a suit. But it is inconceivable that
those of them at least who legislated for democracies were not fully
as liberal as the Gortynian legislator.
In many cases the law determined whether an action could be
brought or not. In certain cases action was barred by the fact that
the matter antedated the new law which was expressly declared not to
be retroactive. Such specification is frequently made when the new
law supersedes some provision of the former law.' Certain offences
were expressly designated as matters for litigation (PsLKov CgEV).
This expression is used in several cases involving unlawful retention of
property by a widow. For instance, if a widow on remarrying carried
off property which belonged to her children they might lay claim to
this property before a court.2 On the other hand, failure to perform
certain required processual acts might debar a man from bringing
suit. For instance, if a domestic animal belonging to one man was
injured by that belonging to another, the plaintiff had no right to
bring suit unless he could produce the injured animal or at least show
where it was.3 In one case a lawsuit is expressly forbidden, when a
funeral procession crossed through a man's land in case there was no
open road.4 In other cases the plaintiff's right to bring action, if
questioned, was determined after the action was begun. This is
rh....rn by thl ci- of fugitive or injured animals.5 If the animal was
not pri-iluced or its hirling place pointed out the plaintiff had no right
v.f avti :.n. SoI: he .urnmm.rncd tv... n-irn to witness his compliance with
thbt( frmalitie. If the .fn.ri ..lant .Lb iected that he had not complied,
the tvo ,:, itrncine and their :ath pr-..-ed the right of the plaintiff to
uec.
Thle Go:rtyn code in ..mni'e c:a f.:rbids self-help preliminary to a
trial, i.e. hefn:.re a man bro-ught cuit he was forbidden to seize the
per-on, either lave ..r frecn-,n, ho was the object of dispute.6
Any...ne mi.iht offer r a:,, lj I t.. a per.-,,n so seized. If such a seizure
was nu-de, a -ort of preliwlinjr'y tridl was held which dealt merely
with th-. seizure and hai.1 nothing whatever to do with the main

issue, which would be settled by a '.ublequent trial after the question
of wrongful seizure had been Ju!, ,.tltI.td. .1 thit preliminary action
it was decided whether the ranr accu-(d o-f making the seizure had
made it and a fine was impc td if he v.a' found guilty. Then he was
ordered to release the man. Afterward the trial dealing with the
original issue was begun. The laws of Zaleucus on the other hand
permitted self-help. The man from whom a slave had been taken was
allowed to recover him and hold him until the trial took place.
K XtEiPV ydp r6y ZaXEKov vb6ov T70o70o 6ev Kpareiv 7rv ap.wflo'rovjUPcov
E' Ts 7jS KpLaews rap' oi 7 -V &ycwyrv av oflalvvE yivtaOa.' But after taking
him back the party was required to bring him before the magistrate
and to declare that he was entitled to be the KbpLos of the slave, giving
pledges in confirmation of his statement.
It was the prevailing practice in Greek communities to allow a
husband to kill on the spot a man whom he caught in adultery with
his wife.2 An old law of Tenedos provided that the adulterer might
be thus dealt with. N6ov C 7va TV OaaL rCSv flaaXhwv TePvelots OLkrOa
el r75 XAdL3o jox6bv &AroKTrivas ro70rorV EeKEL.3 According to the
Gorty n legislator, however, a man who surprised another in adultery
with his wife had to notify the relatives of the adulterer and give
them an opportunity to ransom him. If after proper notification
they refused to ransom him the aggrieved husband was permitted to
deal with him as he chose.4
At Gortyn the court before which a case was to come was regu-
larly specified by law, as is indicated by the clause p6oLv 6ri K'
l-rL0pXXet r p 7ri& &Ka-rai FEKI OKro E yparras.5 Occasionally a limitation
of time is set within which the action had to be brought.6 In case a
suit was brought against a man who had died in debt the trial could
not be held later than a year from the date of his death.' In one case
a trial by evidentiary oath is ordered within twenty days after the
judge had decided that the oath should be taken.8 The time of the
oath was further determined by the fact that four days before it was

taken the plaintiff was required formally to state his charges in the
presence of the defendant, the judge and the recorder. The oath of
the defendant was sufficient answer to these charges.
Trials at Gortyn took place before a single judge.' Since there
is no reference to written testimony it seems probable that all evi-
dence was oral.' Each litigant appeared accompanied by his wit-
nesses. It is impossible to say how the trial was conducted. There is
no indication that there were any formal speeches. In fact, set
speeches are not likely before an audience of one. Each party stated
his contentions (ra p6Xi6peva) confirmed by the declarations of the
witnesses (r7 avoTrovTO 6pUea). If there were no witnesses and neither
party took an oath the case was immediately decided by the judge.
The law has the following provision. r6v tKmarTvY, oTt piY Kara
talTrpavs 9yparrat 6tuKhabe i Z.r'OoTOV, 6iLK66EV at iyparrat, r8v 6'adrXv
b6piubua Kplvev 7ropri r7d T oX6pM a. "The judge, in whatever it has been
written that he shall give judgment according to witnesses or oaths,
shall give judgment as has been written, but in other matters he shall
take an oath and decide according to the contentions."3 According
to this passage there were two types of procedure. Of these two the
Atiftr procedure could be employed only when it was especially
enjoined by the law. In every other case the procedure 6puvura
Kpivety had to be used. In SLKATELV one of two things was indispen-
sable-either witnesses or an oath were required in accordance with
which the judge gave his decision. The two types of procedure were
not alternative. The choice between them was determined entirely
by the nature of the evidence. Both might be used in the same trial.
For instance, the &tKA ft procedure might be used to clear up some
questions which demanded formal proof, but something else might
remain to be determined for which the other procedure would be
necessary. In many cases, however, the main issue might be decided
by the btr&cetv procedure, that is, when the case needed only the testi-
mony of processual witnesses.'

The correctness of this statemrrnt is proved by an examination of
the passages in which LK6;ai' and lopi i'a .. ;.ti iccur. The fir-t
passage to be mentioned i- that in u which a bride-groom has failed tl.
marry an heiress according to law. The judge %at to decide that he
marry her within two months-6 b&e Kano~s 6LcaKa-To b&rviev bv ro7s
Evo7s pivTi. If he did not then marry her, she should marry the next
in succession, retaining all of her property. Here the decree of the
judge is final. If the bridegroom did not comply, he immediately
lost all claim to the heiress or her property. So acquiescence or refusal
on his part settled the case one way or the other. Again, in case a
man died in debt and his creditors brought suit, or in case a creditor
died and his heirs brought suit, the judge decided in accordance with
sworn testimony. 6' K' K' roFderovrL &SKassir 6pioAavra abr6V Kia
7r6v pialrvpavs V V r6 &irkXov.3 Here likewise the decision was final.
If the plaintiff and his witnesses took the oath they won the case.
If they refused to take it they lost. In two instances mention is made
of a judicial decree that a divorced woman take an oath of denial.
In the first instance she was accused of carrying off property belonging
to her divorced husband. The judge decreed an oath of denial. It
may be objected that this action merely created a presumption in
favor of the woman and was not final. But its finality is shown by the
fact that after she had taken the oath if anyone deprived her of
anything he was fined.4 In all cases in the code the evidentiary oath
is always taken as the result of a judicial decree and it always settles
the case.
All of these cases, then, are settled by an evidentiary oath which
is taken in accordance with the judge's decree. Two further instances
of the use of &Kl'ELt have occasioned some dispute.6 In the first
passage it is decreed that along with the payment of a fine a man
surrender the slave whom he has illegally seized before trial. Likewise
in the second instance a man has lost a suit regarding a slave and has

tfaled- to, surrender him. It is decreed that he release the slave and
pay a Ilne. It ill be obherved thit in neither instance does the action
have anytlling to do with the point at issue for which the trial was
originally instituted. They arc wholly independent actions. One is
a matter which must be settled before the trial can proceed and con-
stitutes a trial in itself. The other is subsequent to the trial of the
original issue. Both are final. In neither case do they correspond to
in iure proceedings at Rome or to anakrisis at Athens, for they have
nothing whatever to do with the main issue.
In three cases the judge is bidden to decide a matter Kar-a iairupavs.
In i.20 he is ordered B6K& Etr provided a witness testifies. In ix.30
he is ordered to give judgment (&Kas8rT) iropTri Tr& &rorr5putpea, i.e.
according to the declarations. This phrase undoubtedly refers to
witnesses since it is the verb regularly used of the testimony of wit-
nesses.1 In ix.50 the same expression occurs. In these cases then the
judge is ordered to give judgment according to the testimony of
witnesses, and apparently each time his decision settles the case. It
is only when there are no witnesses that the judge himself is to take
an oath and decide the case. He never takes an oath and decides
either when an evidentiary oath is taken or when there are witnesses,
unless there bc an equal number on each side.
Tle procedure ui'-.'-;ra ,.'ti.v is used then only in cases in which
there is no evidence submnitti.e according to which by law the judge
could decid I: iti ca .e Only o~ne ca-e is mentioned in which thisproced-
ure .was usedl .hen v.itne;ss- tesrtitled and there they testified on both
sides." T"v.o cases occur in which lack of witnesses is distinctly men-
tionel as a reason Ifor the adoption _.,i thi- procedure. The following are
further Txamples. The judge is ordJr :d to adopt this procedure if, in
cace of divorce, the husband denies that he is the cause.3 Likewise in
iii i(I where i.,.'.o, is urnloubtedly equi:.'ak:nt to 6pvit Kpivae the judge
d cides under oath the value of property wrongfully taken from a
divrcedl w.oman. If a man i ac:cuedJ of taking something belonging
to an hI:ire'- and denies tha t it s hers the )udge is to decide on oath.4
In a case in which heirs do not '.ikh to divide certain parts of the
inherited property the judge is tc, decide under oath regarding the

SC [. 13, i. ), 1. I :. 5 G.
'i 23.

4iLz. 21.

THE ADMINISTRATION O:F Lill ICE.

things in dispute.' Again, when a man ha- been ransoned and there
is a dispute as to the amount of the ransom or as to v. heather the man
consented to be ransomed or not, the judge hall decide under oath
regarding the matters in dispute (7ropri ria Uip. ,6pe'a)."
If the evidence, then, produced is of ?uch a character that a
decision can be based upon it the judge is bidden S&KA ev, otherwise
bpuvbvra KpLvEv. If there is conclusive evidence the law orders him to
give his decision in accordance with it. If the evidence is incon-
clusive or equally good on both sides some other method of decision
must be used. There are then three situations which may arise in the
trial of a case. 1. A witness testifies on one side to a contract or
formal transaction of some kind. The judge gives his decision on the
basis of that evidence. 2. Witnesses testify on both sides. The
judge must use his own discretion. 3. No witnesses testify on either
side. Here again he must use his own discretion as he has nothing
on which to base his decision except the conflicting contentions of the
parties.
An examination of the various passages dealing with witnesses
is necessary to show their exact character. In general the examples
of witnesses furnished by the Gortyn code are clear cases of witnesses
who testify to the performance of some formal or processual act.8
There are only two cases in which the witnesses could possibly be
accidental witnesses to the fact and here they are not necessarily so.
If a man violates a woman who is in the charge of a relative he is to
pay a fine, if a witness testifies.4 The possibilities are three. He may
be an accidental witness to the fact. He may be a witness to the right
of the relative to act in behalf of the woman. Headlam interprets
the passage in this way, saying that the witness cannot be a witness
to prove the wrong done since none has been required in the pre-
ceding cases of violation. But in the following case, that of a man
caught in adultery, witnesses are taken by the captor to be present
at the capture of the adulterer.6 The same may be the case here,
that is, it is a case of a precautionary witness taken by the relative to
witness his capture of the man.

The second case dIals with the seizure before the trial of a slave
whose o, nership is in dispute If the defendant makes denial of the
seizure tie judge is to decide on oath, unless a witness testifies.
Again, the p,..ssibilities are three. He may be an accidental witness;
he may be a witness of the defendant to prove that he got possession
of the slave, not by seizure, but by sale, exchange or as surety. Head-
lam adopts this explanation on the ground that he could not be a pre-
cautionary witness of the plaintiff summoned when the plaintiff saw
the slave being carried off. In view, however, of the seduction and
adultery cases mentioned above, this seems to be a very plausible
explanation. If it is correct the witness testifies to the main point at
issue, namely, the seizure of the slave, and his testimony settles the
case just as the witness in the case of seduction would testify to the
seduction and settle the case. Likewise in the adultery case the wit-
nesses who give their testimony as oathhelpers testify to the question
at i-sue, i.e. \whether the defendant \wa; caught in adultery or by
means of a plot. In liLe manner if a man accuses his divorced wife of
not bringing their child to him in the way specified by law, the
testimony cf the \ itnesses w~ho took the child settles the case. They
take an evidentiary oath along with the relatives that the child was
taken in the proper manner.2
In many cases the evidence of the \witnesses has. the effect of a
written contract or receipt and settles the point of the case for which
they were called with the same tfnality as such a document would.
This may n.ot be the final point at issue, but at the same time maybe
of such a character as to permit the judge to decide the case without
further testimony. For instance, a man after catching another in
adultery with hi; wife had to demand of the family of the adulterer
in the presence of witnesses a ran-om.1 If the family refused the
captor had the right to: put the adulterer to death if he really was an
adulterer The relative ; of the adulterer might accue the captor
of murder, contending that they refused to pay a ran-om because he
had iben entrapped.-, The formal v.itnes-e- then :.%uld be called to
give evidence to the fact that the ransom was demanded in the proper
way. Likewise, if a man defeated in a suit regarding a slave failed to
release the slave because he had fled to. a temple for refuge his oppo-
nent might accuse him of failing to deliver the slave. If the defendant

i. 13 f.
In1. 44 f.
'il. 2S it.

\.ar- prudent h-e pr.ointid out the dlae in the tenirmle in the preSe-nce )f
v.itne-ez.' The-_e vitnessees n-ii hl be called t.- t.etify vo this
formality, but their e idence did not apply to the main point at i. ue
-the failure tjo 6ive up the cla\e. They merely testify t. the fact
that the ilave iwa pointed out in sanctuary y, thus indirectly proving
the defendant'. inability to deliver him. Hence further prroceedJinJ;
were imp:-s.ible. \\ itnesfe.S were uied in similar fa-.hion to [p:inti out
injured o:r dead animal;.- \\hen the ov.nership of a s;1ae \was in
dispute if a witne,. testified the case v.a settled bI:) his teltininy.-
His testimony would not be to the present ownership of the slave,
but to some former contract by which the slave passed into the
possession of one or the other of the two contending parties. If the
other party could produce no evidence to show that the slave had
passed into his possession the testimony of this one witness settled
the case. In case a man died in debt a suit was brought to determine
the right of his creditors to collect the debt from his heirs.4 There
might be two elements in the testimony presented here. Witnesses
might be brought to testify to the liability for the debt or they might
testify to the right of the plaintiffs to bring the suit, i. e. that the
defendants were actually the heirs of the deceased. If witnesses are
produced on both of these points the judge can decide in only one way.
In some cases, however, the evidence merely clears up some pre-
liminary situation without affecting the matter in dispute. For
instance, a case in point is where witnesses testify in regard to the
sale of a man already deposited in trust. Their testimony is obviously
in regard to the earlier transaction.5 So likewise with regard to
witnesses present at the division of property.6 In a subsequent trial
their testimony might be used to give title to a piece of property.
There are two kinds of oaths mentioned aside from the oath of the
judge, namely, the oath of the parties and the oaths of the witnesses.
The only oath which the party ever takes is the evidentiary oath and
the only oath which the witness ever takes is one in conjunction with
the party. Presumably a witness could always be called upon to take
an oath, but only in certain cases was an oath demanded frniom him.7
Si. 38 ff.
2Zi barth, op. cit. p. 28.
3i. 14.
4ix. 24 ff.
6x. 25ff.
6v. 51 ff.
7 Cf. infra, pp. 67 ff.

Tiir ADMINI-z FF. %HUN -__11 JUc !ICE

FROM HESIOD TO SOLON

Perjury is not mentioned in the Gortyn code. But Charondas the
lawgiver of Catana is said to have been the first to institute an action
against perjury Ari'totle calls the ETriaKciit the only noteworthy
thing about Charondas' legislation. XapvSovu 6' obi&v ioar-r i&ov rXlv
al 6SKat 7tov f/ev6OIapTVuptSv (7rpC&ros yap iroifva 7r T bri"Ktol.W).L A
party to a suit who believed that a witness or his opponent himself
had taken a false oath could bring a suit for perjury against him after
the trial was over.2 It is tempting to suggest that this action was
instituted as a means of protection against the false evidentiary
oath. It may be objected that the evidentiary oath was final in
Athens when taken in answer to a challenge even in the fourth cen-
tury. This is true. But there the challenger voluntarily challenged
and agreed to accept the oath as final. An entirely different situation
arises when the law orders an evidentiary oath for certain cases as at
Gortyn. It can easily be seen that the oath might be abused and that
many, not fearing t-, take a fal-e oath, wouldl d take it for the sale of
-ecuring an acquittal. In these casje the other litigant is not allowed
It. he heard at all in his oi.r.n defence and the proc:edJure may become
ver,, unjust. It may be _uppo-ed that Charonda-i, to remedy this
-ituation, instituted the ,ri.'i.q in. This procedure va extended to all
cases o( false oths. -\ perjury, trial would involve the fact in the
.:ase and iii effect would amount to a retrial of the ca ;e on its merit-
-\ a general rule an\ freeman Ihd the right to bring suit in his
.,jun behalf or in Iihalf of tho-e under his protection. Women and
-lave.s vere not cunimpeterit parties; to a luit. Self-help v.a. recognized
Ib, the code; in ion;,:w cae-" and forbidden in others In general the
trial was before a single judge .hio bright [be either a regular nmcis-
rate :,r a specially appointed judicial officer. There were tv.'o t\Tie;
of procedure. Where there waz a preporndirani:e of evidence he .wa
obliged to decide in accordance with it. Otherwise he had to ue hi;
own dicreti:on and give hi I dcicsiion under oiath. In one in tannce
large juries, attendance- upon which was compulkor., v.ere pro ided
for. W\itne-ses were for the most part evidentiar'. An oath wa-. not
always; required. -All evidence v.as oral. The evidentiary oath wa-
employed as a form of trial both ,Aith and v.'ithout oathhelper;
Charonldai wasa the first to provide for the pro.ecutiion of perisun.
suspected of perjurl..

The laws of Draco dealing v iih hobsricLile, a ti h(-. art: iound in tbh
redaction of 409/8 B.c.. con::-titutc tlic- rnairi -luri:e ,.f our in formation
regarding practice and proiiced.]ur, in Atl1:ni an Ihflnmicidc ciIourt- duringg.
and previous to, the time of Draco. The stone is badly mutilated;
but with the aid of passages in Demosthenes' a tolerably certain
restoration of the major part of the inscription has been achieved.2
The sections of the code dealing with unpremeditated and justifiable
homicide, as restored, are so complete that the procedure can be
followed from accusation to verdict.
The first step in a trial for unpremeditated homicide was a public
proclamation in the agora forbidding the accused to frequent the
market place and temples. The purpose of this interdict was to
protect from pollution all public places and all religious ceremonies.
The proclamation was made by the king archon at the instance of a
near relative of the deceased. The code makes no mention of the
king archon in this connection, but Aristotle says expressly that he
made the proclamation.3 In view of the conservative character of the
procedure in the homicide courts it is quite likely that Aristotle is
right even for the earlier period. The silence of the code on the
subject is to be explained by the fact that the king archon in pre-
Draconian times was in the habit of making this and similar pro-
clamations regarding polluted persons.4 It was essential then to

indicate only the persons entitled to initiate the proceedings. The
interdict was omitted because, no doubt, it was an ancient and well-
known formula. Its general purport is found in several passages.'
The exact degree of relationship of those who were permitted to
initiate proceedings has been a matter of some dispute. [rpoetfrel 0
7i-j] KTE L[vavL iV ]'YOop[ii, iYr]6[s a&e1 t677 rqo0 KaL a4vtfi)to. But the
interpretation of Lipsius seems the most plausible. On the basis of a
passage of Demosthenes,2 h&e 64 pl78erikpcWo y b7bs robrwv, he asserts
that ivr6s may mean 'up to and including.' Erv6s in this case is
equivalent to pixpt in the phrase preceding, idv Si p& i it rp6s vrarpos
piexpt avetE!Lv railwv. Wyse has conclusively shown that .idxpL may,
and sometimes must, mean 'up to and including.'3 Those who par-
ticipated in the accusation, then, were father, brother, son, the
children of brothers and sisters, uncles and first cousins. The addition
of the concrete &veiao-to after aveaLr67yros is intended to restrict
definitely the meaning of the abstract &ve0ar6r7~ which might easily
be unders:todl in a v.ider -.en-e thar, the rtlatior-.hip of first cousin.
W\\ le p[artici.pati.on in the initial accusation was narrowly restricted
all relatives anJ %v\'tn mnenmberi *-f the phratr: joined freely in the
pr'.'tcuti in. ii',u;i.i :c Opi flritJli, oi 1,t ai 0. SI7r 1ii Xis Kai yapfpois
hai irrtit O,'.i h it C ti i
The interdict wa, followed by the preliminary investigation in
which "the king),"' decided ri.,, f itc o:n the :ind of murder which
had been committed, thu, tc-ttermirinc I-edore which court the trial
- hiuld take place, ,,..i 't t ro'i aITiccLVM ar&s-, tbn,.'. It is known
that in later tinm three irc'eltigatioiit were made in three successive
month and the ca-e was finally tried on the last three days of the
fourth morth.i At the actual trial the lifty-one ephetae served

as judges, ros &tras bsa-yv'-ura Draco dot.: not : pccify the place
of the trial, but unquestionably it was the Palladium, ju-t as it wa- in
later times. r7Tv 6' KOviaJ' ,.ai JOt ,Er'T(E.s, i.ar oinErr -ar-TOh Tr;L. T7s j
pitTOKOv j tivov o ari IIakXXa.';,..- Bar.i:hmnt for an indtterminate
period was the penalty for unpremeditated hi-micide. The person
banished had to keep away not only from Attica, but also from pan-
Hellenic gatherings, iiX0ov Kal iep&v. Under certain conditions the
exile could be terminated.3 If the deceased had a father or a brother
or a son they might readmit the murderer to the country provided
that all of them agreed on the pardon. But if there were no such
relatives the circle was widened to include first cousins. Again, the
consent of all was necessary to make the pardon effective. There was
a further provision, namely, that the relatives were required to take
an oath. The nature of the oath is not specified, doubtless because
it was an oath which had long been in use. It is obviously intended
to substantiate the claims to relationship with the deceased,4 as is
shown by the fact that it was not required of the phratry members
who in case the deceased left no relatives at all exercised the pardon-
ing power, a'l"ucEs.5 Ten members were chosen apworlvv6v by the
fifty-one ephetae for the purpose of considering a pardon. The
provision with regard to the pardon of murderers is made retroactive,
granting return from exile on the same terms to those convicted before
the enactment of Draco's law as well as after."
So long as a convicted murderer or one accused of murder and in-
terdicted remained in banishment he was protected from violence as
was any other Athenian living abroad. If any one killed him he was
liable to punishment on returning to Athens. His trial took place
before the ephetae. But if a murderer entered his native land, i.e.
Attic territory, before his banishment was terminated it was lawful

for anyone either to kill him on the spot or to bring him to trial by
the summary process known as &ira-ywo-i.1 In case of conviction death
was doubtless the penalty. In such a trial the one who brought him
before the court would act as prosecutor. In this process the accused
was not tried as a murderer. It was a regular criminal trial, the pur-
pose of which was to protect the citizens from pollution. Accordingly
any citizen was qualified to prosecute. Groundless prosecutions were
discouraged by the imposition of a fine of a thousand drachmae on a
prosecutor who failed to obtain one fifth of the votes.2
One of the sections of the law as restored by Kbhler on the basis
of a law cited in Demosthenes forbids maltreatment or blackmail
of a returned murderer. A fine equivalent to double the injury
inflicted or the sum extorted was imposed. But this restoration is
uncertain. Philippi has suggested quite a different restoration, like-
wise from Demosthenes.3 As only two letters are legible it is impos-
sible to decide between these rival restorations. Kdhler's interpreta-
tion is in accord with later practice.
The next portion of the code deals with justifiable homicide. The
specifications in regard to the right of the relatives to accuse and pro-
secute are not repeated. The first case mentioned is killing in self-
defence. [(v 7s C t apavr]a XEe[p]G[v a&uKwov Kr lviL ......... "The
kings" are to decide on the kind of homicide, that is whether
or not it is prima facie justifiable homicide in self-defence. The
ephetae are to act as judges and decide upon the guilt of the accused
in precisely the same manner as in cases of unpremeditated homicide.
The next section has been the subject of much dispute. The only
remaining letters are e tEXuv at the end of line 36. K6hler assumed that
it dealt with the murder of a slave and restored it thus: Kal Kara
raor& 46vov S'KaLs eval 6oD0ov KTrevaVTL j W68epov, i.e. the trial would be
just the same as that described above. Bergk, however, restored it
as a further provision regarding justifiable homicide and this, indeed,

'1 raywy-, was a process by which a criminal caught in the act might be haled
before a magistrate by his captor. A returned murderer caught in Attica might also
be taken before the themothetae fr execution Demosthenes xxiii. 31 ff. Cf. Gilbert,
,,p cit p 3s7.

seems plausible and preferable, since the prc ed ing sentence dJealk with
that type of homicide case. Ka ei c ii a.un apapre ri, -r a\\.p, rr .it
9Xv b7ri] &XevO4[p]o[rs ratoi ) &Uri gnrp J' rj JITi j3 Ie; iir r-arpi
rJtLo]poiLbyvos Kr[dlvt, T70O7UTW & VKa :t *$;f.i'' Tre;Viroira. It is a provi ion
permitting a man to kill an adulterer caught in the act.' Daretle
rejects this interpretation on the ground that the letter ( before EX>.E
is certain. According to Kbhler's restoration thi; cltiu.se is fIollowved
by a further provision regarding justifiable homicide, i.e. if a nman in
self-defence slays another who is robbing him there iz no punishment
So the two clauses dealing with justifiable homicide are separated by
an entirely different topic. If Kohler's restoration is accepted a
preliminary investigation must be assumed to determine whether the
murderer acted in self-defence, just as in the case above an official
inquiry is necessary to determine who struck the first blow and
whether the homicide is justifiable. If Bergk's restoration is accepted,
it may be assumed that a trial took place like the one described in
Lysias' first oration in defence of a husband who claimed that he slew
Eratosthenes in his wife's apartment. Justifiable homicide cases
were in later practice tried before the Delphinium and presumably
they were tried there in the time of Draco.2
The inscription in its present state contains no reference to trials
such as took place in the fifth and fourth centuries before the courts
of the Prytaneum and in Phreatto. Pausanias, in describing the
action taken by the Thasians against the statue of Theagenes which
fell on a man with fatal results, attributes the institution of the
Prytaneum to Draco who in his homicide laws made the provision
that an inanimate object should be cast beyond the borders if it fell
on a person and killed him.3 The so-called amnesty law shows that all
of the five Athenian homicide courts were functioning in pre-Solonian
times.4 It has been suggested that the unrestorable lines at the end
of the inscription contained references to the two types of trial which h
would come before the Prytaneum and in Phreatto. It has bien

SCf. the Gortyn code ii. 28 ff.
SThe locality was perhaps originally a matter of accident due tc the iuppl;an1'L
taking refuge in a particular shrine. Cf. supra, p. 19.
SPausanias vi. 11.6. Presumably the courts of the Prytaneum and in Phrattl)
were conducted in much the same way as in later times. The Prytanumin .' as chiefly
ceremonial (Cf. Hyde, American Journal of Philology, xxxviii, pp. 152 tl I Neith.r
these courts can have sat very frequently.
Gertrude Smith, C. P. xvi. pp. 345 ff.

FROM HESIOD TO SOLON

pointed Lut that the space is not sufficient for such provisions. In
fact the remainder of the inscription is quite incapable of restoration
ec'.l:t that tht traces of the word pera`rotap show that the law prob-
ably enic.J % ith the provision quoted in Demosthenes, 8s av ipXpwv j
UltIrqi n'rL,,i Fn rr,,' OEa6v au'yxuOvjvat rbve, ALxeradrotia77 abrOv Oti-Lov
frtL t, hai rit't.,aii 1.R r EKELPOV..1
,A this cur
h:mni:i.cd is not mentioned, although Draco is reputed to have been
the irst to :raw. a distinction between premeditated, unpremeditated
an.] justiliabli hu,micide. In this connection the introductory words
of the code, as it stands, have occasioned much discussion for they
are obviously not words which would be used to begin a set of laws,
Kat Ati pi, K. 7. X. One explanation offered is that the laws of Draco
contained a provision on premeditated homicide at the beginning.
When the laws were copied that provision was placed on a separate
stele. If this theory is correct it is necessary to assume that the
popular decree, which heads the existing stele, and the axon number
were repeated at the beginning of each stele, an assumption which is
by no means attractive. Another theory explains the beginning on
the supposition that the laws of Draco on premeditated homicide had
been superseded by later legislation and hence were no longer in
existence. Gilbert contends that in the original laws of Draco a
single sentence preceded the present beginning. E~v eK rpovo'as KTrdvy
rTis Tva, airo0aveiv (4j deyewv KaL T TEKEW vov &ra cdvas. The remain-
der of the paragraph after QbryELv, then, would refer to the procedure
common to both kinds of homicide trial, i.e. the kings decide before
which court the case shall go, but the ephetae constitute the member-
ship of the court in both cases. This theory of Gilbert is due to his
as-umrti:on that 'Jurirrn th time .)f Draco the ephetae judged cases of
premeditatedl murder. [L;t the ':,urt of the Areopagus in the time of
Draco had !iriiJicti:rn in the:e c:as.c
It is impo:-ible t, rfirid authentic material for a reconstruction of
tht pr_, .e:durei thi .-\rc .pagu in pre-Solonian and pre-Draconian
times. Several m, thi,:al trial- for homicide are represented as being

held at Athens before a court which sat for the purpose of dealing with
such cases. In some of these the parties involved were not Athenians.
These stories seem to indicate that in very early times provision was
made in Athens for the trial of persons who were charged with murder
and that strangers may have been induced by its reputation to
submit their cases to this court.' It is true that in the case of for-
eigners the verdict could not be enforced, but the question of juris-
diction is of relatively little importance where the matter is one of
religion rather than of law. In all of the myths this court is known
as the Areopagus.2 The account of none of these trials, however,
except that of Orestes affords any data regarding practice and pro-
cedure. Aeschylus, in his description of this trial in the Eumenides,
represents Athena as instituting a homicide court at Athens for the
purpose of trying Orestes. The common tradition in ancient times
placed the scene of the trial on the Areopagus.3 Aeschylus identifies
the new court instituted by Athena with the Areopagus of the
historical period. Some modern scholars have refused to accept the
tradition and considerable discussion about the scene of the trial has
ensued;4 but the problem has no place in the present study which is
wholly limited to procedure. The details given by Aeschylus are not
full enough to distinguish the court which he describes from any
of the other homicide courts. The proceedings begin with a pre-
liminary investigation conducted by Athena acting as presiding

pp. 23 ff.). The preliminary investigation was identical with that used in cases of
unpremeditated homicide. The accuser swore to his right to prosecute and to the
guilt of the defendant, the defendant in his turn, to his innocence (Antiphon v. 11;
v. 16; Lysias x. 11; Demosthenes xxiii. 67). Each of the two could make two speeches,
after the first of which the defendant was at liberty to go into exile (Demosthenes xxiii.
69; Pollux viii. 117). Equal votes constituted an acquittal (Antiphon v. 51). The king
archon took part in the voting after he had divested himself of his magisterial char-
acter by taking off his wreath (Aristotle, Alk. Pol. Ivii. 4; Pollux viii. 90).
SAncient writers attribute to Athens the invention of courts and trials. Cf.
Lipsius, Das Attische Recht, p. 3.
2 Hellanicus, quoted by the scholiast on Euripides, Orestes 1648; Electra 1258 ff.;
Demosthenes xxiii. 66; Pausanias i. 28.5; Parian Marble, Ep. 3; Bekker, Anecdota
i. 444, 11. 7 ff.
'Aeschylus, Eumenides 687 ft.; Euripides, Electra 1258 ff.; Orestes 1650; Ipk.
Taur. 961.
SRidgeway, "The True Scene of the Second Act of the Eumenides of Aeschylus,"
Class. Rev. xxi. pp. 163 ff. Cf. Verrall, p. 184.

FROM HESIOD TO SOLON

officer and filling the role of the king archon in later times.' The
Erinycs are quttirLned first. They tell their name and state their
accusation against Orestes.
(iovEs yap Elva& IKjrp6s iEtiouaro.
Athena inquires \whether there were extenuating circumstances, but
the Erinyes evade the question. They object that Orestes will
neither take nor tender an evidentiary oath. At this point Athena
questions Oresire as to his name and story and his right to be a
suppliant. Orestes replies that he is already ceremonially clean since
his purification was performed in Apollo's temple at Delphi. Then
he describes his act, asking Athena to judge its justifiability. Athena
declares herself incapable of deciding the matter alone and determines
to choose from the best of her citizens men who shall constitute a
permanent tribunal for the trial of homicide.2 The two parties to
the suit are ordered to summon their witnesses and produce their
proofs.
At the trial Athena again presides. A herald proclaims the meet-
ing by the blast of a trumpet. While the people are assembling
Athena proposes to proclaim the establishment of the new court,
but her speech is cut short by the entrance of Apollo. The trial
begins and the ordinance is postponed. Apollo testifies to the purifi-
cation of Orestes at his instance and declares himself responsible for
his act. Athena then opens the trial using the regular technical
formula daehyw rTPv BiKty. The prosecution represented by the
Erinyes is bidden to make the accusation. This consists in questions
addressed to Orestes.3 Orestes lays the guilt upon Apollo, at the
same time inquiring why the Erinyes did not pursue his guilty mother.
Their sole defence is that she was not of the same blood with the man
she murdered. Orestes then calls upon .pollo for his evidence. The
god declares that he received from Zeus the oracle directing Orestes
to avenge his father. Cl taemnes,.tra des-.rved to die because of her
ovwn guilt. To the Erinyes' objection that Zeus himself put his own
father in chain- and yet in the case of Orestes considers the death
of a father of more importance than that of a mother Apollo replies

that fetters may be unbound, but spilt blood is Irrevocable Hec here
enters upon his main defence, namely, that the father ih the true
parent. After this closing plea of the defence Athena givIc over the
case to the jury and Apollo urges them to remember their cath At
this point the trial is interrupted by the proclamation :.f Athena's
ordinance establishing the court of the Areopagu- for :i!l fiture tilie.
While the voting proceeds the Erinyes and Apollo alternately address
the jury in an attempt to win their votes. From a legal standpoint
this is entirely irregular. Before the votes are counted Athena declares
that her vote is for Orestes since she values the father more highly
than the mother, and she adds that Orestes shall be acquitted if the
votes are equal.'
vLK 8' 'OpeaTis, KMp iua6,f7os KpLOp.
There has been some discussion on this point, two possibilities being
suggested, (1) that if the jury is equally divided, Athena, by her vote,
will make a majority in Orestes' favor; (2) that if Athena's vote
makes equality, then this equality shall acquit the defendant. The
second of these two views seems contradictory to the statement of
Aeschylus that the ballots were equally divided.2
Aeschylus is a dramatist, not a legal historian. It is therefore not
to be supposed that in an antiquarian spirit he sought to reproduce
on the stage a pre-Draconian trial.3 But even if he was satisfied in
the main to project back the practice of his own day it was inevitable
that he should introduce antique features which would be more or
less familiar to a cultured Athenian who had occasion to acquaint
himself, as Aeschylus did, with the traditions regarding the Areopa-
gus. The procedure of the court was ritualistic and changes would
take place very slowly. The history of homicide courts from Solon to
Demosthenes, a period of nearly three centuries, is known, and during
this time, although some changes in organization occurred, yet the
procedure remained practically the same. Some of the features which
can be selected as undoubtedly antique are as follows. The king

'Cf. Euripides, Iph. Taur. 965; Electra 1265 ff.
2 Verrall, p. xlvi, remarks that from Aeschylus it would naturally be inferr:.] trha
in his time an Areopagite jury was even in number and that the archon tLb a.'u "ha
presided always voted according to Athena's precedent for acquittal so that equally y
in the votes of the jurors always counted in favor of the defendant.
SVerrall, p. xlvi, considers the Eumenides a doubtful authority on la- an.l ]:al
history since the real issue of the play is religious, not legal.

FROM HESIOD TO SOLON

archon alwavs pre-ided at murder trials. The preliminary investiga-
tion and hi. pr--idency went back as far at least as the time of Draco.
And. if it is true that Draco merely codified existing customary laws
and practice- the anakrisis must have belonged to pre-Draconian
procedure. At least it must be as old as the distinction between
different kind-. o:f homicide. The evidentiary oath tendered by the
Eumenides is an exceedingly ancient institution since it was known
in the days of Homer.' Out if this grew the oaths of the parties
preliminary to a trial. These preliminary oaths are not mentioned
by Aeschylus unless 0k6vwo . 6pKwv and 6prK v 7repjvras ni7v KucLKOP
bpcalv2 are meant to include them. Aeschylus could assume that
his audience would take these oaths for granted. Equality of votes
counted as acquittal in the time of the orators and of course in
Aeschylus' time, but how far back this can be projected it is impos-
sible to say. From a legal standpoint this is quite a natural procedure
because mere equality of votes indicates that the prosecution has
not proved its case.
Aeschylus does not reproduce the regular four set speeches of an
Athenian murder trial. It is not sufficient explanation to say that
they are not suited to the drama. Euripides has shown that set
speeches of accusation and defence can be easily managed. It is more
likely that Aeschylus is here reproducing the procedure before a
magistrate who in pre-Solonian times had final jurisdiction. Each
litigant, no doubt, presented his side of the case largely in the form
of answers to questions of the magistrates, constantly interrupted and
stimulated by protests and questions of his opponent. Aeschylus
presents, then, a rather realistic picture of an ancient trial before a
single magistrate. In the time of the orators the parties no longer
gave evidence except in answer to their opponent's questions in
:opin court. This is a cur i a!l of the arncint practice here represented.
Tht number of Art:cp.Aigte-c in the dran-a. which is usually sup-
pored by commentator- to be twelve, is of no irmprrtance here. From
the fact that Aihina dJtilare- tihat he v. ill s -lt-ct a jury for this trial
V'errall argue- that the Areop:agI ne~r sat in full assembly, but
that a jurt, lf.r each trial \'.a : selct,:d from the v hole group by some
re-pon'ible official 3 He fin,-k it inconceivable that all members

SCf in'r.J p. 55
I' 4>3 anid 4,"c
Sp. IS2.

THE ArMIr[",I.ilTi'AlN i JT L 'iE

were compelled to attend each session and equally inconceivable that
attendance was left to private inclination. Vcrrall speaks a, if
Athena meant to select from an already c.t:i:tng body of jurors,
forgetting that she is instituting an entirely new court from her
citizen body.
Nothing is known about the procedure in homicide trials at Sparta
except that in contrast with Athenian practice they extended over
several days.' In Cyme the law recognized the evidentiary oath
of an accuser with oathhelpers as the procedure to be used in homi-
cide cases. If the prosecutor in a trial for murder could furnish a
certain number of oathhelpers he won his case.2

1 Gilbert, Constitutional Antiquities, p. 80. According to Euripides' account
Orestes was not permitted to flee from Argos, but was held for trial (Orestes 46 ff.,
430; 443; 870 ff.). But it must not be supposed that he was attempting to picture an
Argive homicide trial. The description is, however, interesting as a picture of a homi-
cide trial before a popular assembly rather than before a court. In the first part of the
play, the trial as described by Electra, was to decide on the mode of Orestes' death, not
on his guilt. But later in the rather sketchy description of the trial the point at issue is
whether he shall suffer the death penalty or not. The Argives apparently gather in full
assembly. A herald opens the session. Then in succession come four speeches by
different people, two in accusation and two in defence. So far Euripides follows the
regular Athenian procedure of four speeches in a murder trial. But at this point
Orestes is introduced with a speech in his own behalf. This is entirely irregular.
2 Aristotle, Politics 1269 a 1. For a discussion of this law, cf. infra, pp. 65 ff.

CHAPTER V

THE EVIDENTIARY OATH AND OATHHELPERS

(a) The Evidentiary Oath of the Principal.
The evidentiary oath began as a challenge or wager.' There are several
examples of this early form of the evidentiary oath in Greece. It was
known in the Homeric epoch. After the chariot race in the funeral
games for Patroclus the second prize was given to Antilochus, who had
won by a foul.2 Thereupon Menelaus protested that the prize was his.
At first he asked the chiefs to arbitrate impartially between them (/n8'
7Tr' aip-ry), but immediately rejected his own suggestion and chal-
lenged Antilochus to an evidentiary oath to the effect that he had not
won by a foul. Antilochus refused the oath and without more ado the
prize was given to Menelaus. There is a vague reference to this kind
of oath in Hesiod.3 The passage may mean that a man has been
deprived of some property by another who takes an oath that he is
innocent, thereby perjuring himself. An analogous case is found in
the Hymn to Hermes.4 Hermes, on being accused by Apollo of having
stolen the latter's cattle, angrily declares that he will take the matter
before Zeus and offers to swear that he did not steal them. In this
case, however, Apollo apparently refuses to accept the oath and
Hermes submits to a regular trial before Zeus. This is an instance of
an oath voluntarily offered by the litigant in support of his own con-
tentions.

Bonner, "Administration of Justice in the Age of Homer," Classical Philology
vi, p. 30; Evidence in Athenian Courts, p. 74. This form of trial is found in the
primitive stages of many legal systems. It was known in Germanic law (Grimm,
Deutsche Rechtsaltertiimer, ii. 495 ff.), in Anglo-Saxon law it was occasionally allowed
(Thayer, A Preliminary Treatise on Evidence at the Common Law, pp. 24, 25) and in
Mir;achusrtt ...-lA.n:, 1 .. bitL man :7.. pc mr ittLd by law to swear an evidentiary oath
in an.aer t.. the aj:cu.-- l'..n A..I in In-rl n 11. Pr.v. Laws Mass. 151 [1693-94]).
11h.:.3 diii 5.2 i'. On lth pa-s:.lg i:. B..,nner, "Administration of Justice in the
Agr ofI Homer, C. P. % i. p. .0
I Wcr i. ],, Diy. I'V).3 'I

Theognis makes several references to the false evidentiary oath,
bewailing the faithlessness of mankind. He speaks especially of an
evidentiary oath with regard to a deposit of property.1
el 6' 6l6kS irapa KaLp6v avj p tLXOKeipdt. OVpY
KTiaerat, E1Z opKW crap r 8liKatLov EXcv,
arita iv TL OfpEw KipBS SoKEZ, iS 5i TEXETjU V
aWes iyevro KaK6P, Oewv 6' trEP&TXE vohs.
The Eumenides of Aeschylus offers another instance of a challenge
to an oath which was refused.2
Herodotus in two passages refers to the evidentiary oath. A
deposit of money was made with Glaucus, a Spartan, a man renowned
for his honesty. When the sons of the depositor came to collect the
money Glaucus told them that he had no recollection of the trans-
action. After their departure he consulted the oracle at Delphi,
asking if he should swear and so keep the money.3 This is merely
a contemplated oath, but if taken with the consent of the claimants
it would have settled the case. The other passage has to do with an
oath regarding the identity of a person.4
The Gortyn code furnishes several instances of this type of oath.
But the party no longer takes the oath on his own initiative or on a
challenge from his opponent. The law pecifies the cases in which an
evidentiary oath shall be taken and which of the two parties in a
particular case has the privilege of taking it. Thus the code, which
represents a very early stage of legal development, illustrates the
growth of a voluntary procedure into a compulsory procedure speci-
fied by law for certain types of cases. At some point in this early
period, perhaps when the first written laws were established, the law-
giver perceived the value of the evidentiary oath as a form of trial.
He thereupon introduced it in his code. The fir-t instance of the
oath in the Gortyn code is that of a slave girl vi:,lated by Ihcr cv. n
master. He is the legal representative of the sla\t girl, but in thi-
case since he has become the culprit she is allowed t.:. institute action

herself. Her oath decides the matter (6pt irtniai'. If che take- it the
ma-ter must pay a Fine.' The next case dcals with a divH-rced, woman
accuisJ of carrying, off sonme r pr.:erty belonging tl her husband
A:l: norv.ledeemenlt i:. the theft involves the p-aynient of a tine. But
if -he Jenies it, the court decree: that dhe tale an .:ath of .Jnial under
conditions specified by law. That the oath if taken is final is shown
by the fact that various measures are provided to prevent the
molestation of her property after she has taken the oath.2 The de-
fendant in an action to recover a debt when witnesses are lacking is
allowed at the demand of the plaintiff to clear himself by one of two
methods; the first of these is an evidentiary oath. "but if witnesses
did not declare or if he who made the promise -- let him either
take an oath, or -- whichever the plaintiff chose."3
Another type of the evidentiary oath as taken by the principal
alone is the oath of the Athenian father to the legitimacy of a son
on his introduction into the phratry.4 This oath created a pre-
sumption that the contentions of the father were true, but it was sub-
ject to rebuttal, if anyone had doubts about its truth. An analogous
oath is that furnished by an inscription from Dyme5 where citizen-
ship was extended to foreigners of free birth on the payment of a
talent to the state. All over seventeen years of age themselves took
the oath. But if a man who was applying for citizenship had sons
under seventeen, he took the oath that they were his legitimate sons
and were under seventeen years of age. When they reached the age
of seventeen they became citizens through the strength of that oath.6
The next change which is known to have been made in the char-
acter of the oath is attributed to Solon, as were so many ancient

laws, although it may well belong to an earlier s-ag. of the Athenian
legal system.1 booaLral: Kptrai eiatc ol Vi a-rLil'a.7Ao,'o-S 'rorep...: ti'ophE;
rov Kptvos&'WPv, KEXeiEE yap U6XwL. ro: rAo\oi't.'o'r, ; rTa-A6h Pjrt
cru/p.6Xaea iX p t~7 M&t-prvpas, 6hbvwc,, hai r6z, (t'i.h' roi- ut ouoiw,,. The
oath is limited to cases in which there is no other available evidence,
but both parties may take it instead of one at in the earlier stages of
the institution.2 By this time it is liain that the vvidentiary- value
of the oath has almost disappeared. It is little more than a formality.
It is extremely probable then that the oath of the parties pre-
liminary to a trial arose from this oath.3 Originally restricted to
certain cases in the law attributed to Solon, the evidentiary oath soon
spread to other cases and at last became the normal practice in every
form of trial. Plato intimates that the preliminary party oath was
derived from the evidentiary oath, or, as he calls it, the oath of
Rhadamanthys.4 This is a very plausible explanation. Each party
in both private and public suits after a time took the oath, the
plaintiff that the defendant committed the crime, the defendant that
he did not. Then the purely evidentiary character of the preliminary
oath was lost and it became a mere formality.
The oath was very solemn and was taken with great formality
over victims on a blazing altar.5 The one who swore had to take
hold of the altar or he might lay his hand on his child as he took the
oath. Always the oath ended with a curse calling down the wrath
of the gods upon the swearer and all his race if he swore falsely. The

1 Lexica Segueriana, Bekker, Anecdola Gracca, i. 242. Meier-Sch6mann-Lipsius'
Der allische Process, p. 898, n. 376, connect this oath definitely with the oath in
response to a challenge in later Athenian law.
2 Gilbert, Beilirge, p. 466, suggests that both parties were ready to take the oath
and the legislator considered it unfair to give the advantage to one party by the
restriction of it to either party.
3 By the preliminary oath is meant the oath by which at the beginning of a suit
each party confirmed his plea.
Laws 948 B. Plato objects to the fact that if the part, oFth; are taktn ont of
the two litigants in every suit is bound to be perjured. (il.Ib:rt, op cil pp 4r)r f ippar-
ently accepts the Platonic explanation and Bonner, op pp 24 f ,epr~r; l.:;, renri.rks
upon the evidentiary character of the party oath. Ihilippi, D.r .-lreoal.., p 92,
suggests that these oaths may not have had to do with the fact it.lslf, but aith the
conviction of the one who swore. Rohde, Psyche, i. 2f.. n 2, sule .ts that the iaths
were not juristic, but religious.
6 For the formalities attendant upon various oaths, i.-:e L.~ul Ix, D.r i. ,1 i den
Griechen (Erschien zuerst vor dem Wiirzburger Lecti...n-sl.ita!:.g fur das S.'rmm,:r-
semester, 1844), pp. 179 ff.

FROM HESIOD TO SOLON

one who demanded the oath administered it to the swearer who
repeated it word for word.'
To summarize-the original evidentiary oath began with a wager
or challenge. It was a wholly voluntary act. After a time the possi-
bility of using such an oath as a method of procedure was recognized
and it was made a regular form of trial by the state, even being com-
pulsory in some cases. If taken where prescribed by law it was final.
Later the oath became subject to rebuttal and finally both parties
were allowed to swear an evidentiary oath. At length this party
oath spread to all cases and became a mere formality.

(b) The Evidentiary Oath of the Principal with Oathhelpers

Compurgation has been treated as an independent institution.
But it is really a development of the evidentiary oath and many of
its peculiarities become clear only if this fact is recognized. In the
various legal systems the evidentiary oath was early felt to be insuffi-
cient and it survived in modified forms in only a few instances. In
later stages as a rule the oath of the principal had to be supported by
auxiliary oaths varying in number according to the matter at issue.2
Th;s f.irmn o tri.l as especially common in the Middle Ages.3 In
German law the coi-.swearers were known as Eideshelfer, in English
as althhelper uor ccompurgators.4 Under both systems the helper
swore merely, t', hi cu.,nfidence in the principal's oath. It had nothing
whatever tro do .' ith the fact at issue.5 Any freeman might wage his

lau I SlaeCs, not being competent to take an .,lath, .ere conce-
quently not allowed as oathhilper-. It i generally believed that in
the earlier stages of the inrititution a man had as oathhhhelper r'inl
hi' o'n relati\'... Naturally the r1lati\ w-ould Itbe most Leenly
interested, -inc i tlhe acciu'at.n, if not li-rproved, mrnitit caue a feud '
It iwas alo a matter o.f dJuty.P A, time \vent ,on, iibov',\ er, the right ito
take the oath v-wa- extended to niclghbi:.r- and friends. Naturally
rnily people wlbo Klrnew tile principal %\ell, relative:. neigl.bro irti-
mater friend-, could be admitLed as olatlilidf r-.' It '.a- always a
distinctl partisan intitution. Oatlhhelpers had to be of age.'
A. a general rilc iwomene could] not actas a oatihhelper4 The rank; fi
an ioathhelper night depend onr that of his principal, or on that of the
ptI.rt:'l injury., for inTitainc on that 'f thl. Ji-c:ca-c'd in a homicide
case.' In the beginning onathlielper- mnu-t al. .ays lave been on tie
Side oIf thl defendant It is of course a v\ry natural growth of the

institution that the privilege should eventually be extended to the
pilaintifi as well,1 just as in the case of the evidentiary oath of the
principal.
The procedure was quite simple. In England when the litigant
was permitted to wage his law the court fixed the number of com-
purgators which he must produce,2 since the number varied according
to the importance of the case.3 As the institution developed the
method of choosing oathhelpers changed. At first the selection lay
entirely with the party to the suit,4 but later they were chosen by the
adversary or the judge. But under this later procedure the litigant
always retained the right to reject those who ware chosen if he could
satisfactorily explain his refusal to accept them. The oathhelper,
on the other hand, had the right to refuse to take oath if he was
unable to reconcile it with his conscience.5 In the primitive stages of
every legal system there is apparent a great fear of committing perjury.
Herein consist the safeguards which made the institution a sounder
means of proof than it seems to be. When the trial took place the
oath was administered to the litigant by the adversary in early times
and in later times by the judge. The litigant repeated it word for
word. Then the oathhelpers had to swear, at first, it seems, jointly,
but in later times singly.6 By the individual oath it was made to
appear a more personal and solemn thing. The content of the oath
is much the same in both systems. In English courts they swore
"The oath is clean that -- hath sworn"7 although it might also

In English law there is no case cited by Thayer or by Pollock and Maitland in
which the oathhelpers aid the plaintiff until the later stages of the institution when it
had begun to be used in civil suits. Pollock and Maitland, op. cit. ii. 634-36. Cf.
Grimm, op. cit. In Germany also the Eideshelfer seem originally to have aided the
defendant exclusively, although later they appear even in homicide cases on the side of
the plaintiff. An old law is mentioned by Meister according to which the plaintiff in a
h...mTi.:i.J trirl c...uld.I ith two Eideshelfer swear that the defendant was guilty. Cf.
k. NM E. \.[. idt r, **i..1-- Vhelfer im griechischen Rechte," Rh. Mus. lxiii. p. 575, n. 1.
''P.:.II.:. :k 3nd N- M ilh ., op. cit. ii. 610.
'An nt.. r-. rtin, illuitrA tion of this is the different number of oathhelpers required
bt:.- 3 I.i..; in L...nd:,n in the 13th century ibidd. ii. 634-36). Twelve seems to have
bt.n a n.:.rmal uli.abr in both the Germanic and English systems. Cf. ibid. ii. 600;
T"hai.: r,r .'! r.. 'J': '',-h r.-'er, op. cit. p. 358. Only rarely was the oath with one helper
-ulfficurnt IGri-L ran, .' ,: 285). Occasionally as many as 300 oathhelpers are found.
r* i r,,ir.. r, .p. ,. .pp. 83, 384; Pollock and Maitland, op. cit. i. 140.
CL lhrb..1: rI ,p ,. .'. p ,3; Pollock and Maitland, op. cit. i. 140.
*' chr:..J r, L, .'. .'. 354.
Pr.ll.ck and N itian.1, op. cit. i. 140.

THE ADMINISTRATION OF JUSTICE

take a less positive form, i.e. they might swear that the oath was
true to the best of their knowledge.' In the Germanic .v-tem they
swore that the oath of the principal was "rein und unmein "- So
in neither system is an oathhelper ever found who swore to the fact,
although there are undeniably cases in which the fact .wa s k:n,.nr
Great emphasis was put upon the form of the oath as s-,uirn b\' the
oathhelper.3 The compurgator who swore to the innocence :.f a
person who was really guilty was not liable to a charge of perjury
This was, of course, just, since he swore to his own belief, not tI the
facts of the case which presumably he did not know.
The institution of compurgation in England and Germany was
never developed farther than this. The oathhelper never swore to
anything except his confidence in the principal. It is true that they
appear sometimes on one side of the case, sometimes on the other.
It is true also that they must have known the facts on many occasions.
But this in no wise changed the character of their oath.
Although the institution was so well known in mediaeval law no
one had observed any instances of it in the legal systems of the
ancient Greeks until in 1895 Zitelmann4 declared that he had found
some cases of oathhelpers in the great Gortyn inscription. He was
followed by various scholars who pointed out additional examples of
the institution elsewhere in Greece,5 and the whole matter was

subjected to a careful study by Meister' who collected and discussed
all of the previously alleged occurrences of the institution and added
a few new examples.
Before examining the various passages adduced by Meister and
his predecessors in support of the existence of the institution in
Greece it will be well to point out that oathhelpers as a distinct class
of witnesses are not mentioned by any Greek author. Nor does any
certain technical name for them occur in Greek inscriptions.2 No
definite reference to the institution is found in the Attic orators and
the lexicographers who confine themselves to the explanation of what
occurs in the orators are silent. Not even Pollux, who devotes his
entire eighth book to legal terminology, mentions them. Neither
Plato nor Aristotle, who were both versed in legal history, has any
designation for them. Aristotle makes the following statement in
regard to the different kinds of witnesses.3 Eioi bS at paprvplat at ptju
7repi aroD at e irept &Lp4nuft0Y roDt7os Kal at pv 7repl roT rphyparos at S 7epi
T70o ijov, 6ore (avepbv 6nr ob6iVror' arTlv aropi7aL jiaprvplas Xpqroils.
That is, Aristotle makes a division into witnesses of fact and
witnesses to character. But although it is generally admitted
that the institution of oathhelpers in the German and English sense
was unknown in Athenian law, most scholars have accepted the
phrase al paprvpla 7repl roD TjOous as referring to Eideshelfer. But
Aristotle is describing the law as it existed in his day. Hence it is not
probable that he would discuss an obsolete type of witness. Those
who argue that the phrase has reference to oathhelpers use as proof
the fact that Aristotle places these witnesses on a par with witnesses
of fact (he calls them both xpi7oipr that is a decision might be based
on the evidence of either), but that German Leumundszeugen, the
counterpart of our familiar character witnesses who testify to the
general reputation of a defendant, are never on a par with witnesses of

R. Mus. kxiii (1908), pp. 559 ff. Cf. Cauer's review, Wochenschriftfiir klassische
Philologie xxvi, p. 766.
2 The word 6bpwbra& which is preserved in two inscriptions (Collitz-Bechtel,
op. cit. 4964 and 5092) has often been considered a technical designation for this class of
witnesses and 6pxop6rat ibidd. 4969; Fougeres, Bull. Corr. Hell. xvi,p.577) has been inter-
preted as a variant for 6pco6brat. But all four inscriptions are fr-gmentary and unintel-
ligible and it is not possible to make any deductions from them alone. Meister rejects
bpKtotrat as oathhelpers on the ground that this word is used unmistakably of jurors
in the Oeanthea-Chaleion inscription (op. cit. p. 579). The nearest approach to a word
for the institution is the verb avvexoopuaOOat (Collitz-Bechtel, op. ci4. 4986).
3Rhetori 1376 a 23 ff.

n4 THE ADM1INISTLAT.iO:'. OF JUSTICE

fact. But the analogy with German law ji valuele.. For English
law put, character witneses. on precisely the s~ame plane with wit-
nesses of fact. Furthermore, character evidence, although not quite
in the English sense, was well known at Athens and might be admitted
even in the Areopagus.' It is then inconceivable that Aristotle refer:
to compurgation which was not known at Athens in his day. That
he refers to character evidence is borne out by the following sentence
which Meister fails to quote:2 El p7# yp Kard 7ro0 rpajyparos 7 abrI
bLoXoyovuivt s 73 r, p toaLP roOirt v avrlas,, aXX& repi 7T00 iOous j7 abT7o
EIs TrLiiKeta 7 TOO 4pOflrToYro0v els lSavuX6rra. Obviously there is no'.
indication here of an oath either to a fact or to the truth of another
man's oath. The witness, regularly unsworn in Athenian practice,
simply testifies to the briecKta or avUX6nys of the party. It is clear
then that Aristotle is not only not using a special designation for
oathhelpers, but is not even speaking of oathhelpers.
Meister recognized two distinct classes of oathhelpers in Greek
law.3
1. Those who swore that the principal's oath was good. This
class corresponds precisely to compurgation in English and
Germanic law as described above.
2. Those who swore the same oath as the principal in support
of his contentions. This class is entirely unknown to the English
and Germanic systems.
The former class need have no knowledge of the fact; the latter mu:t
The oaths consequently are quite different in content, the :common
feature being that they join the principal in his preliminary oath in
denial or affirmation and that in both cases the oaths are final The
ordinary witness, if sworn at all, had no part in the prehlinary oath
taken by the litigants, but swore to matters within hih knoiv.wlge
which were considered germane to the issue; frequently he had no
knowledge of the main issue-the guilt or innocence of the defendant.
Still another factor may be noted. In many cases no vitnees?
could be found to swear that the defendant did not commit the crime

I Bonner, Evidence in Athenian Courts, pp. 18 and 83 f.
2 Sandys translates: "For if we have no evidence as to the fact, ..,thir in agree-
ment with our own side of the case or opposed to that of the adverse prt.., .it all :'.enI .
(we shall be sure to find plenty) as to character,... to establish, tl-.at i, eulrer our
own respectability or the opponent's worthlessness."
a Meister, op. cil. pp. 579 ff.; cf. Zitelmann, op. cit. p. 76; Ziebarth, Di i;ir,..'. r r.,
in iure Graeco quaestiones, pp. 40 f.

FROM. HEsIOD :1 SOLON

with uhich he ias charged. For cramIple, Eu.ilheus, the defendant
in the Herc.des murder trial '.as the last person Seen in company
with Herodes.' So no one could swear that he vas not the murderer.
The problem then is to discover if possible whether class 2 de-
velops from class 1. Although Meister has recognized the two distinct
classes in Greek law, he has failed to consider this question in detail,
thus confusing his argument.
Of the examples given by Meister there are only two cases of
Eideshelfer which correspond to the English and German systems,i.e.
relatives who swear to the truth of the defendant's oath. One occurs
in an inscription from Egyptian Thebes belonging to the second
century B.c.2 Two brothers, Heracleides and Nechutes, were charged
with wounding. They were ordered to take an evidentiary oath to the
effect that they themselves did not cause the wound, and did not
know who did (this probably means, as Meister suggests, that they
were not accomplices). In support of this oath their brothers swear
that it is true (AXrBiij 7t 8 picov Edra). &X?70i is used in the same sense
as the German "rein und unmein" and the English "good," that is, it
merely expresses the helper's confidence in the principal and implies
no knowledge of the facts. The oathhelpers could not have had
knowledge of the facts unless the time of the crime was specified and
they could prove an alibi for the defendants. This, however, is only
incidental. The fact that they swear merely that the oath of the
defendants is true proves that they are oathhelpers in the only sense
of the term known in German and English law. It is interesting to
note that they are the closest relatives of the defendants. Relation-
ship was one of the qualifications for the first type of oathhelper.
Apparently the oath of the defendants with their oathhelpers decided
the case. If the helpers failed to take it, the defendants were to be
brought before the ErtKrdrs-- (Epxeoat iri r6v 4ivrdrtrv) for trial
on the merits of the case.
This form of compurgation is illustrated also by a passage from the
Politics in which Aristotle commenting on the absurdity of ancient
laws uses as an illustration a law of Cyme.3 & rijO6s n Trap&ohxrat
paprbpcov 6 6 occKwv rv b6vov 7-Tv abroi rovyyeovv, &voxov YEvaL r7~ f6vo rdv

)ebyovra. The phrase rtv abro uavyyfv&v has generally been con-
strued as dependent upon b6vov and so has been :onsi:lerd l to have
reference to the universal rule in Greece that only a relative of a
murdered man could prosecute the murderer.' But if it is joined v. ith
rxiOos papripwv, which is not at all impossible,2 one of the iniportant
characteristics of the original Eideshelfer would be fulflild. In any
case there is no real difficulty in recognizing oathhelpers in the
irXi~86s T papTbpWv. It may be objected that there is no mention of
an cath, the indispensable feature of the institution. But the objec-
tion cannot be sustained. For this is a murder trial and at Athens
all witnesses in murder trials were sworn so that Aristotle would
scarcely think it necessary to mention the oath which his readers
would assume. Aristotle describes them as Muprvpes which seems to
show that he did not recognize them as oathhelpers. But if he had
realized that he was criticizing the institution of oathhelpers he would
not have used the word piTprvp, but some circumlocution, since his
readers could not have known that he meant oathhelpers. With his
knowledge of legal institutions it is remarkable that Aristotle was
ignorant of the institution of oathhelpers, but in the face of this
passage it is better to admit his ignorance than to make a desperate
effort to defend his knowledge.3 This is what Meister does, thereby
weakening his argument.
The fact that stress is put on the quantity also makes for their
being oathhelpers. If they were fact witnesses number would be of
comparatively little importance. Reliability, not quantity, is the
desideratum in testimonial evidence. It is scarcely possible that they
could be fact witnesses, for murder is usually committed with the
greatest secrecy. The only reason for demanding a certain number
of eyewitnesses would be a practice of determining the case without
letting the defendant be heard in his own defense. This is just what
happens in the case of oathhelpers. If the party produces the
required number he wins the case. It is inconceivable that the law
required a fixed number of eyewitnesses in order to establish a prima
facie case. If they are oathhelpers, the passage furnishes an illus-

Iratin of oathhelper- as used on the zide of the plaintiff. The
number \a, ficed b.l y the court.'
These twv cases exhaust the Gru.k instances of Eideshelfer as the\
appear in Germanic and English practice. In the other cases cited by
Meister and his predecessor; the so-called oathhelpers swear not that
the oath is good, but thuy 'wear the same oath as the principal. In
other words, owing to their knowledge of facts they are able to join the
principal in a solemn oath. They thus differ fundamentally also
from regular witnesses in that the combination oath, like the ancient
evidentiary oath, settles the case. The opponent is not allowed to
say a word. The unity and finality of the oath indicate a distinct
development of oathhelpers unknown to other systems.
Of the cases which belong under this second class, all from the
laws of Gortyn, there is one which shows more clearly than the others
the transition from class 1 to class 2. It comes from one of the
so-called popular decrees.2 The first part of the inscription is rather
obscure and the different persons with whom it deals have been
variously interpreted, but the impossibility of filling the lacuna with
certainty renders any interpretation a mere guess. Meister turns his
attention chiefly to the second part of the inscription, which is much
clearer and which apparently deals with a similar situation. In this
case A has made a seizure of movable objects from the house in which
B supposedly lives. But C who really lives there brings suit to
recover his property. He notifies three neighbors, who come and
swear with him that the person (B) from whom A meant to take the

Meister cites an excellent analogy in a German law to the effect that a plaintiff
in a homicide case could with two oathhelpers swear that the defendant was guilty of a
murder. Apparently the verdict was based on this oath and the defendant was not
heard in his own defense.
Collitz-Bechtel, op. cit. 4986. Meister, op. cit. pp. 570 ff.; Halbherr, A. J. A. i
(1897),pp. 212 ff.; Ziebarth, Dos Recht von Gortyn, p. 36. Meister supposes that there are
three men involved-A has been successful in a suit against B and has seized (in pay-
ment) property supposedly belonging to B, but in reality belonging to C. C brings suit
to recover his property from A and to strengthen his case brings nine of the neighbors.
Both B and C are put under oath. At this point a rather hopeless gap occurs which has
been filled, plausibly in the view of several who have accepted it, by the word -rXis.
Thus the force of the sentence is that after each side has taken its oath that side wins
on which the majority swear. The nine neighbors evidently take an oath, but the
content is wholly omitted and the circumstances under which it is taken are very
obscure.

THE ADMINISTRATION OF JUS li L_

goods really does not live in the house.' The neighbor; are sum-
moned by the plaintiff himself for the purpose of cwiearing the same
oath which he swears. The joint character of the oath i' sh,..wn by
the verb CwvvcKoog6aa00at. Relatives are not r(quircJ, but men are
selected who naturally know the principal well, the neare-t neighbors
Not only however, do they know the principal well, but they mu-t of
necessity know the facts of the case also, that is, in what hou-e the
man lives. As a result they do not this time merely '.ear to their
confidence in the man, but knowing the facts they make their oath
stronger by swearing to the facts. This seems to be a very natural
course of development. At first the oathhelperi sv?.eir only that a
man's oath is good, but occasions like the one under dli':u::ion ari-e
in which the oathhelpers, besides being friends and relative-, can not
but be cognizant of the very simple fact at issue. It it then a very
short step to the point of strengthening the case if the principal b;
swearing to the fact.
The other cases from the Gortyn laws show a still further develop-
ment along the same line, but now instead of being men who are
chosen because they know the principal and hence pre-umably kno:
the facts, they are men who are summoned to take the oath becau-e
they do know the facts inasmuch as they have participated in a
preliminary transaction. The first of these case- deal with the dis-
position of a child born after the separation of it, parents.' The
mother is obliged to take the child to her husband in the pre-ence
of three witnesses. If the father refuses to accept it the mother can
dispose of it as she chooses. Then, if the father attempt' to recover
the child, asserting that it was not duly brought to: him, the ca-e i-
settled by putting the precautionary witnesses and the relative' to an
oath to the effect that they took the child in the proper way. These
witnesses are to have preference in the oath (6p,.A re;,i 1. Thi; means
that the father has no recourse. He loses the case. The joint char-
acter of the oath and its finality are sufficient to bring the:e -\itnes.es
under the second class of oathhelpers. Headlam,3 %thile recognizing

1 Halbherr translates as follows: "Let three of the nine r.;ihb...r i~ ei r t .,.;:th:r
(with the person who affirms this), to whom this person will decl:r. I .i'rcrh.lr, that1. hr
on whom the seizers have enforced the sequestration does r.-.t .i :ll in it Th.- Iricr
of rpocfd rr is rather "to notify" and the latter part of the sent nr.: ir- ih .int:r or *'.f th.-
oath as Meister correctly translates it.
SCode of Gortyn, iii. 44-iv. 8.
SOp. cil. pp. 48 ff.

FROM HESIOD TO SOLON

the joint character of this oath and its purpose of confirming the
statement of the witnesses and the party, has completely failed to see
its finality. As soon as these two essential characteristics of the oath
of the compurgators in class 2 are seen to be present, there is no need
of Meister's detailed argument.'
The next case, cited from a second Gortyn inscription, is very
similar to the one just discussed, i.e. it is a case of precautionary
witnesses who later become oathhelpers.2 If the domestic animal
belonging to one man has been attacked by that belonging to another
man and is killed or put to flight, the owner of the injured beast is
to pursue it, if it is possible, in case it has fled. But if pursuit is
impossible or the animal is dead, he is bound to summon the owner
of the offending animal and point out to him the place where his own
animal is. This must be done in the presence of two witnesses.
Then, if during the suit brought by the owner of the injured animal
the defendant charges that these formalities were not complied with,
the production of the witnesses and their oath is all that is necessary
to settle the matter. The witnesses swear to the fact, as is shown by
the content of their oath--a brESiero fj bir'evXer ij cEK&X 6f6KT1Wi.3
But they swear with the man who formerly summoned them as
processual or precautionary witnesses and their oath is final as shown
by the word 6pKLCTrEpov. Hence they belong in class 2.
The next case which Meister cites from the Gortyn code has been
generally accepted as convincing proof of the existence of the institu-
tion in its German and English sense, i.e. it would fall under type 1
of the present classification. It was this passage which started the

Meister admits that they seem to be fact witnesses, but argues that they have
several characteristics which bring them nearer to the class of Eideshelfer: (1) they are
sworn-a thing which is never said of the regular fact witnesses in the Gortyn code;
(2) the oath is so important that the lawgiver mentions only that and not the content
of the oath. (Meister is wrong in this. The Greek explicitly gives the content: at
itricuvav); (3) they swear along with the party.
2 Ziebarth, op. cit. p. 28.
Meister argues here that the witnesses are not even "wissende Eideshelfer"
because they could not be expected to be present at the pursuit of the animal. So they
swear relying on the character of the party. But the Greek will scarcely allow this
interpretation. The passage means that if the animal had fled somewhere beyond
reach where the owner cannot get it (the pointing out of a slave in sanctuary in a temple
is analogous), he is to point out that place just as much as if the animal were dead. The
witnesses were present at that performance and could swear to it.

THE ADMINISIPA R.ON io: JUi rICE

entire discussion of oathhelper- in Greek lawv.' The ca-e deal with
the treatment of an adulterer caught in the act. The one who catches
him must bid his relatives ran :om him. If they do not do .o within
a certain period of time, the captor may dlipoie of him a: he dishes.
But if the captive, or his relative- in case he i.; lain, contend that he
was not caught in adultery, but that a plot wa laid for him, the taptor
whose position has now been reversed to that of defendant mu-t
swear that he did take him in adultery The oath must be taken with
four oathhelpers if it be the ca-e o:i a free vwoman, with two other; in
the case of the wife of an aTreaipos, the ma3.ter and one other in the
case of a slave.
The joint oath in this case is clear, a ii also its finality. But the
content has been disputed. That they .swore to the fact i. made
evident by the language (poLshior' ,iXf', 6oX5aoO tai i ptl. But in
spite of this it has been repeatedly a ;serted that they did not know the
facts. The arguments of Zitelmann and Nei-ter on this point are
untenable. They maintain that accidental witnesses in such numbers
are impossible in such a case and that there would be no time to
summon precautionary witnesses. Accidental witnesses are unlikely,
it is true. But the second argument is sufficiently answered by the
parallel case of the Relatives of Eratosthenes vs. Euphiletus.A Euphile-
tus had suspected Eratosthenes of adultery with his wife. So he
questioned a slave girl about the matter and persuaded her to tell him
when Eratosthenes came to the house. After :he had reported to him
that the man was there he collected several wiitnes.es and with them
went to his wife's apartment where he found Erat':?thente and killed
him in the presence of the witnesses. In Attic la, a husband who
caught a man in adultery with his wife was permitted to .lay him on
the spot. In this case the defendant distinctly :ay- that he did not
warn the witnesses of his intention beforehand. He went to the
neighbor's houses as soon as the slave girl aroused him and took
whomever he happened to find at home. 'Thei:e witnerite. later
appeared in court at the time of the trial to te-tlfy to the juititiability
of Euphiletus' act.3 It is natural that a man knowing the ri-k he ran

of not being able to prove his right to slay should be thus provident.
And it is not at all unnatural that the required number of witnesses
for cases of the kind should be specified by law. This is just what
happens in the Gortyn case. These witnesses know the facts and
their oath is joint and final so that they belong to the second class of
oathhelpers.
A rather puzzling case from the Gortyn code which Meister has
rejected as an example of oathhelpers on the ground that the number
of witnesses is not fixed deserves to be included under this class .'
"If one dies who has gone surety or has lost a suit or owes money given
as security or has been guilty of fraud or conspiracy or another stands
in such relations to him one shall bring suit against said person before
the end of the year. The judge shall render his decision according to
the testimony. If the suit is with reference to a judgment won the
judge and the recorder, if he is alive and a citizen, and the heirs as
witnesses shall give testimony, but in the case of surety and pledges
and fraud and conspiracy the heirs as witnesses shall give testimony.
After they have testified (or if they refuse to testify--rofdtrovrc)
the judge shall decree that the plaintiff when he has taken oath him-
self and likewise the witnesses has judgment for the simple amount."2
The passage has to do with the procedure to be followed in several
different kinds of suits, the character of which can not be made out
with any degree of certainty. One point is clear, however, that the
defendant is dead and his heirs represent him. In one certain kind of
case, that with regard to a judgment won in court, the judge and
recorder under whom it was won, are specified as witnesses. In other
cases the proper witnesses or the heirs acting as witnesses (airuvpes
ol cTrinfXXovres) are to testify. Two alternative procedures are pro-
vided. If the witnesses make their declarations, the judge is to
decide in accordance with them. There are two interpretations given
for the second procedure arising from the puzzling word drof erovTn.
By some it has been interpreted as meaning "after the witnesses have
made their declarations." Then the judge decrees that the plaintiff
take an evidentiary oath along with his witnesses and if they comply
that he have judgment for the simple amount of his debt. According
to the other interpretation the witnesses of the defendant refuse to

testify. Then the plaintiff resorts to the simple means of formally
making a declaration under oath along with his v. itnc-i-.:. If he dos
so he is declared winner in the suit. That is, his oath and that of hif
helpers is final. The interpretation of &7roFeirov7T, however, doe- not
affect this discussion for in either case the plaintiff resorts to an
evidentiary oath with helpers. The oath is joint and tinal. The
question of number need occasion no difficulty. The plaintiff bring;
forward processual witnesses who witnessed the original contract.
There would have been a definite number of them and they all
swear in this compurgatory oath. There is no need of specifying the
number. It would have been fixed for the original contract and
remains the same.
An alleged case of Eideshelfer which has occasioned an enormous
amount of discussion is that of the irwo6-rac which an alien plaintiff
in Oeanthea or Chaleion was allowed to choose under certain
conditions:

"sworn men with judicial functions." A small group of scholars who
have argued the case in detail interpret the word as oathhelpers.1
Their arguments are as follows: brcowyra cannot mean additional
jurors; no instance of a partial jury thus specially selected occurs
elsewhere; if the chosen ones are additional judges, who decides
whether they are chosen according to the conditions?; they cannot be
fact witnesses since they are chosen (Xe&rrw).
This last argument is sound. They cannot be witnesses of fact.
With regard to the other arguments, in the first place in Greek as in
English law,2 trial by wager of law is often an alternative for trial
with witnesses. In any case, the oathhelpers are not brought in after
the jury has already reached its decision. It is inconceivable that the
plaintiff would not be allowed the benefit of oathhelpers from the
beginning even if there were fact witnesses. Again, although Eides-
helfer are admittedly partisans, yet in this case the iTr wpTaL must not
include the vp6,evos and Fil5os $vos of the litigant, the only two
people whom there would be much possibility of his knowing well.
For, by the terms of the treaty, if a man has made a sojourn of more
than a month in Oeanthea or Chaleion he must submit to the regular
courts and cannot be tried before the 4Evo8SKai. This restriction,
which constitutes the most important argument against Eideshelfer,
is disregarded by both R. Meister and R. M. E. Meister. It is
impossible to see why the right to choose fifteen or nine Eideshelfer
is not just as great or even more of a preference accorded to one side
than the right to choose some jurors. R. M. E. Meister's argument
is absolutely untenable that if the men are additional jurors they will
sit along with the ZevoaixKa and so there will be no one to decide
whether the conditions specified for the choice of them have been
complied with or not. The ZevoSlKat would naturally decide the
matter.
To the fact that there are odd numbers in both cases no import-
ance has been attached by either writer. The numbers are too large
for fact witnesses, as has been said. It is also too much to suppose
that an alien who had been in the place less than a month could get so
many Eideshelfer, exclusive, be it observed, of the only two men who
could be supposed to know him well, his host and his proxenos.
Thus Meister's argument against fact witnesses militates against
SR. Meister, op. cit. pp. 35 ff.;Gilbert op. cit. pp. 468 f.; R. M. E. Meister, op. cit.
pp. 561 ff.
2 Cf. the Theban case, p. 65.

THE ADMINISTRATION OF .JS liCE

Eideshelfer also. But if the irwlrat are considered as a new group of
jurors (odd in number, so that there cannot be an equal number of
votes on both sides) there is then described Iyv the inscription an
extremely fair means of dealing with the case. The plaintiff, an
alien, is given a fair deal by being allowed to choose them. His
opponent is treated fairly because the r.ili:cus chosen by the alien are
not apt to be influenced to the disadvantage :f their fellow citizen.
There is no objection to this interpretation either from a linguistic
or from a legal standpoint. It is interesting to note in connection with
this the last part of the same inscription. In a case in which a citizen
proceeds against a fellow citizen in accordance with the terms of the
aviupoXai the magistrates are to choose Jrom t1he -ortlhistl mien jurors
6pKcpW6rat who on oath are to decide the case ty\ a I.ajoriiy decisioI.
However, another treaty cited by Hitzig' proves the matter con-
clusively if further proof is necessary. The inscription deals V ith a
treaty between Gortyn and Lato in Crete In -uits between citizens of
the two places the Gortynian plaintiff brings action at Lato and vice
versa and the plaintiff chooses his own judges--6KaaTavs iXiaOw 6
a&&SK6pevor. The situation is precisely the same as that at Oeanthea
and Chaleion.
To summarize-there existed in Greece two distinct forms of the
institution of oathhelpers: those who swore to their confidence in the
oath of the principal (they might or might not have knowledge of the
facts of the case) and those who swore a joint oath with the principal
to the facts. Together with the character witnesses found in Aris-
totle2 there are then three types of witnesses who assist the principal
otherwise than by merely testifying to the fact. This third class may
also, as class 2, have developed from the original oathhelper. The
attitude of both types (i.e. class 1 and class 3) towards the litigant
is obviously the same, for both have implicit confidence in his honesty
Between the two there is undoubtedly a psychological connection,
but only confusion results from failure to recognize the fact that the\
are not the same. No Greek writer has identified them either
explicitly or implicitly. There is no feature that is common to all
three types of witnesses. The first two swear in the preliminary oath
although they swear to different things. The first and third signify
their confidence in the principal, although one swears and the other

takes no oath. It is quite reasonable then to treat the second and
third types as separate developments of the original oathhelper,
inasmuch as each type has a point in common with the original oath-
helpers.
The procedure followed in connection with the two types of
Eideshelfer was apparently the same although the content of the two
oaths was different. The numbers are much smaller than those as a
rule found in the English and German systems. There they might be
several hundred in number. But in Greek law they range from one
in one part of the adultery case at Gortyn to four in another division of
the same case. The extant examples, however, are very few and
doubtless larger numbers were often required. Definite numbers
are required for specific cases by law. In the Gortyn case the
number varies with the importance of the individual injured as also
in the case of the child. This tallies with Germanic and English law.
They are found on the side both of the defendant and the plaintiff.
As a rule they are chosen by the litigant, but at Thebes the persons
are designated by the court. They are found in both civil and criminal
suits. In one case the oath includes a solemn curse and perhaps it
always did so as was the case with the earliest type of evidentiary
oath.
It was assumed at the beginning of the discussion of the institu-
tion of Eideshelfer that it is an outgrowth and strengthened form of
the evidentiary oath.' This has long been recognized by investiga-
tors in the field of Germanic law. But writers on the history of the
Greek institution have failed to recognize the connection A man's
own oath which at first had sufficed to clear him without further
inquiry gradually came to be felt as insufficient proof of his innocence.
So the sworn confidence of his relatives and later of friends was
added.' Glotz, w ho treats the institution only as a part of the evolu-
tion of family solidarity, explains its development in the following
way.3 He maintains that at first the oathhelpers are relatives of the
party and so occupy the same position as avengers of blood. Hence
in origin the institution is merely a declaration of family solidarity.
The relative who is especially injured becomes the chief avenger and
the others are more or less auxiliary. From this comes the fact that

only the accuser or the accused ever has oathhelpers to confirm his
oath. That is to say, a witness never has an oathhelper to sub-
stantiate his statements. The only difficulty with (GlI:u.' solution i-
the fact that as a usual thing in the earliest stage :of the institution
oathhelpers are found only on the side of the defendant. (Glotz'
argument admits of them on both sides from the very beginning,
perhaps even as arising on the side of the avenge: or plaitiill. It is
not impossible, however, partially to reconcile the two:, vewvs given
above. Perhaps at first a man was allowed to clear himself by an
oath. This is felt as insufficient. Then family solidarity steps in and
the relatives support the defendant. That is, family solidarity
explains the fact that at first relatives are always the oathhelpers.
This limits the institution in its beginnings to the defendant's side,
or to what Glotz would designate the passive solidarity of the family.
The remainder of Glotz' argument is undoubtedly correct.
When the families of the 'yvos are split apart oathhelpers are chosen
in one of two ways. They may be limited to the closest relatives
without regard to number or the number may be restricted without
specification as to the degree of relationship. The next stage is when
the origin is forgotten and neighbors and friends are called on.
But whatever may have been its origin the psychology of the
institution is perfectly clear-the partisan spirit which continued
to be its dominant characteristic as long as it lasted. Gilbert sug-
gested that it arose out of such situations as the trial scene depicted
on the shield of Achilles.1 To say that it had its origin in such a
situation is slightly misleading, as it does not account for the fact
that originally the oathhelpers were relatives. But the argument
that there is the same feeling, that is, the partisan spirit, in both is
quite true. Glotz objects to the use of this passage in the evolution
of the institution on the ground that the oathhelper always appears
in the character of a subordinate, but that apwybs implies a protector
rather than a supporter. Besides, the aprpyol of Homer have no
practical influence, as they are not really participants in the trial.
Of course, his contention is correct that they are not really oath-
helpers, but the word has such a definite partisan signification that it
is not going too far to say that the psychology back of the Homeric
scene is the same as that behind compurgation. Two other passages
are of interest in determining the meaning of apwyor.

SIliad xviii. 497 ff. Cf. especially line 502.

FROM HESIOD TO SOLON

.iX.' -yEr', 'ApyEIYwv iri-opes ie pibovrtes,
1ii ptcOV &pkoripotL 6KLKAcartae, pil7s' eir' &poyp,
gitroro rs Etr-aIv 'Axaiwv XaXKOXLtrvwv.1
There is no protection implied here; it is mere partiality.
pfeZs U8 gapr6pi&i TC Kal rriAqpeta
KaXtacrO', Apwoy& rTj 8L Os 6pKouara.2
Here the idea of partisanship is not as distinct as that of mere aid,
assistance.
There are found in Athenian law a few kinds of oaths which seem
to be survivals of the institution of oathhelpers. In cases before the
Areopagus no person could give evidence unless at the beginning of
the trial he had taken an oath either as to the innocence or to the
guilt of the defendant.3 Bonner considers it probable that this rule
applied also to the other homicide courts, but gives no examples.4
Leisi extends it to the Palladium and Delphinium. Despite the fact
that there are no convincing instances, it is quite probable that the
practice was extended to the other homicide courts.
In this case there is apparent the growth of the oathhelper into
the regular witness. He still swears the preliminary oath along with
his principal, but later in the case he presents his testimony just as an
ordinary witness of fact. So his oath is not final. One step further
and the preliminary oath with the principal would be abandoned and
nothing would be left but the witness of fact.
A group of witnesses analogous to oathhelpers are those who
preliminary to a murder trial swear to the relationship of the pro-
secutor to the murdered man.5 These witnesses swear the same
oath as the principal and swear it along with him. With the joint
preliminary oath, however, the analogy ends, for it was not final.
Even women and children were allowed to take oath to establish the
relationship of the prosecutor to the deceased.6

laId l jii. 573 ff.
SAeschylus, Ltrnnmi.- 455 f.
L L;sias iv. 4 Cr. !Bonner, Evidence in Athenian Courts, pp. 28 ff., 76. Leisi,
D,r Z.'lue.- im ,ili..-,n Rtcl:, p. 57.
S"ELv;denc: in the Areupa:gus," C. P. vii. p. 453.
1 It was ump.:.sible for a man to prosecute another for murder if he was not a
relative ..f the deceased. Hence the right to prosecute had to be established before the
icticn could tike place.
SDcmr.islh.ne xhlM. 7I.1 For a full discussion of the subject cf. Bonner, "Did
Wumen Trtl) In H...mcide Cases in Athens?", C. P. i. pp. 127 ff. Cf. Leisi, op. cit.

THE ADMINISTPA TION OF JuSrTICl

The voluntary oath whicn might be offered in defense of a litigant
has in common with oathhelpers sworn conrideiice in a man.' Thi,
seems generally to have been taken by relatives. -
There are then in Attica a fewv survi\als of the institution. Meic-
ter, failing to see these survival, as-ertcd "In Attika hat ;ich keine
Spur von ihnen gefunden, v.ie leicht erklarlich ist: Eideshelfer sind
auf kleinere Verh5iltnisse zugeichnitten, vo einer dtn andcren kennt:
in der grossen Stadt und bei entwickelten \erkchrsverhaltnissen
kinnen sie nicht vorkommen."' It is interesting to note that in
England, one of the greatest commercial countries in the world, the
institution was not abolished until 1833..

p. 18 and Lipsius, op. cit, p. 874, h,,u hilc accepting Brrner'; main contentior,
-that women and children could be -,itne;s,: in a hbemicide caie-ini.ot that the
evidence of the wife and children is on the fact at issue At any rate they would
swear to the same thing that the prosecutor ;more to in his 6 ,.oaJia when the caae
came up for preliminary hearing (Bonner, o, cal p 129.1 and that is all that is of con-
sequence in this discussion.
SZiebarth, De iureiurando in irc Grac,.i qaistlrlni p -11, and Meicr-Sch,'marnn-
Lipsius, Der attische Process, ii. 899, n. 379 for pitntiful cramples .-f the oath.
SZiebarth gives an illustration if thi-s iath nhich MleirLcr, o'p c:d p 5783 ha'
conclusively shown to be false. For the text of the ins;riptcon eee Inscripl. Grav,'.z
ix. 1.334.
a Op. cit. p. 581.

oathhelpers 54; 59 ff.; in Gortyn code
62 ff.; not mentioned by Aristotle 63;
classes of in Greek law 64 ff.; no tech-
nical term for in Greek law 63; at
Cyme 65 ff.; survivals of in Attic
law 77
oaths, in the Gortyn code 42
6pvbvra KplvElv procedure at Gortyn 37 ff.
Orestes, trial of 7; 50 ff.

INDEX

perjury, treatment of by Charondas 43
phylobasileis 23
polemarch 11; institution of 21
pollution, in connection with homicide 4;
5; 9
prosecution, right of in homicide 3; 45
Prytaneum, in amnesty law of Solon 26;
institution of 48
purification from blood guilt 5